Opinion
NO. 2012-CA-000601-MR
06-07-2013
BRIAN KENNETH BELLAMY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Teresa Young Elizabethtown, Kentucky Brian Butler Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 08-CR-00169
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. MAZE, JUDGE: On December 1, 2008, an Ohio County grand jury indicted Brian Bellamy for the offenses of murder and leaving the scene of an accident. Following a trial, a jury found Bellamy guilty of second-degree manslaughter and leaving the scene of an accident. In lieu of jury sentencing, Bellamy accepted a plea offer which recommended a total sentence of seven years' imprisonment.
Thereafter, on July 14, 2011, Bellamy filed a motion to alter, amend or vacate his conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. After conducting an evidentiary hearing, the trial court denied the motion on December 5, 2011. Bellamy filed a motion for additional factual findings pursuant to Kentucky Rules of Civil Procedure (CR) 55.02, which the trial court granted on March 22, 2012. This appeal followed.
While before the trial court, Bellamy argued that his trial counsel was ineffective on several grounds. On appeal, Bellamy focuses on a single issue: he alleges that his trial counsel was ineffective for failing to move to suppress a search warrant of his vehicle which led to incriminating evidence. In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that, but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The standard for assessing counsel's performance is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Id. at 688-89, 104 S. Ct. at 2065.
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The burden is on the movant to overcome this presumption. Id. at 689, 104 S. Ct. at 2065; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). The movant must also identify specific acts or omissions alleged to constitute deficient performance. Id. at 690, 104 S. Ct. at 2066. When an evidentiary hearing is held in an RCr 11 .42 proceeding, this court reviews the trial court's factual findings under a clearly erroneous standard. CR 52.01; Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) (overruled on other grounds). However, based upon the trial court's factual findings, a reviewing court conducts a de novo review of counsel's performance and any potential prejudice caused by counsel's deficient performance. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
The relevant and undisputed facts surrounding issuance of the search warrant and Bellamy's claim of ineffective assistance of counsel are set forth in the trial court's March 22, 2012, order, as follows:
On November 6, 2008, Antone Wilkins and Terry Gunter went to the Black Cat Tavern. Brian Bellamy, the defendant in this action, was present in the Black Cat Tavern when Mr. Wilkins and Ms. Gunter arrived. At approximately 12:30 a.m., after having consumed some drinks, Mr. Wilkins and Ms. Gunter departed the tavern heading on Kentucky Highway 54 toward Fordsville.
Almost immediately after he got into the vehicle, Mr. Wilkins became belligerent with Ms. Gunter and tried to choke her. Approximately a mile and a half down the road he struck Ms. Gunter in the face. Ms. Gunter's glasses fell on the floorboard of the vehicle and her nose was broken. Ms. Gunter then stopped the vehicle and made Mr. Wilkins get out on the side of the road near the intersection of Hwy. 54 and Ralph Road. Ms. Gunter turned the vehicle around and headed back toward the tavern. As she was driving, Ms. Gunter stated that she was crying nonstop and her glasses remained on the floorboard of the vehicle making it difficult for her to see. During the short drive back to the tavern, Ms. Gunter encountered a vehicle driving toward her on her side of the road. She could not tell the exact color of the vehicle, but described the vehicle as a dark colored SUV
style vehicle. She was unable to identify the make or model of the vehicle or the driver. Mr. Wilkins was eventually found dead on Highway 54, having been struck sometime between 12:30 and 1:00 a.m. by an unknown vehicle.
On November 7, the morning after Mr. Wilkins body had been found, KSP [Kentucky State Police] Trooper Bryan Whitaker went to speak to Ms. Gunter. When the officer arrived at Ms. Gunter's residence Brian Bellamy was present. Also at the residence was Mr. Bellamy's vehicle, a 2002 blue Jeep. During the course of talking to Ms. Gunter and Mr. Bellamy, Trooper Whitaker learned that Brian Bellamy had been at the Black Cat tavern the night Mr. Wilkins was killed. Trooper Whitaker also learned about the dark SUV that Ms. Gunter had seen coming toward her on Highway 54. Based on this information, Trooper Whitaker looked at Mr. Bellamy's vehicle. He did note a small crack in the turn signal, but did not believe it to be significant. Trooper Whitaker also took pictures of Mr. Bellamy's car.
On November 13, 2008, Trooper Whitaker applied for a search warrant for Mr. Bellamy's vehicle. In the affidavit in support of the warrant, Trooper Whitaker stated as follows:
Based on the affiant's investigation Antone Wilkins, an adult male was the victim of a hit run [sic]accident on Highway 54 in Ohio County Kentucky on November 7, 2008. At approximately 12:30 a.m. on November 7, 2008, the victim Antone Wilkins and his girlfriend Terry Gunter left the Black Cat Bar on Highway 54, Fordsville, Kentucky. Terry Gunter was driving the vehicle. The affiant learned from Ms. Gunter that she and Wilkins were fighting and arguing while driving so she turned around and let Mr. Wilkins out at the intersection of Ralph Road and Highway 54. The affiant learned from Ms. Gunter that she then was driving back to the Black Cat when an oncoming vehicle almost ran her off the road. The
vehicle matched the description of the vehicle being driven by Brian Bellamy (which is the vehicle to be searched) who had also been at the Black Cat drinking that same night. The affiant learned from witnesses at the Black Cat that Mr. Bellamy had left the bar right after Ms. Gunter and Mr. Wilkins and drove towards Fordsville, Kentucky, on Highway 54. Approximately 1:00 a.m. Bill Smith, bartender at the Black Cat, left the bar and was driving home on Highway 54 towards Fordsville and came upon what he thought to be a deer in the road. Bill Smith stops his vehicle and gets out and finds Mr. Wilkins laying dead in the road.Following seizure of Mr. Bellamy's vehicle, swabs were taken from the vehicle. Testing revealed that the swabs contained blood that matched the DNA profile of Antone Wilkins. As previously stated by this court during the RCR 11.42 hearing, absent the evidence obtained as a result of the search warrant, the defendant would not have been convicted (11/30/11: 2:40-31-2:40-36).
When a trial court conducts an evidentiary hearing, RCr 11.42(6) requires the court to "make findings of fact and conclusions of law determinative of the material issues of fact and enter a final order accordingly." Although the trial court entered a supplemental order setting out the agreed facts surrounding the issuance of the warrant, it did not enter written findings stating its reasons for denying Bellamy's RCr 11.42 motion. However, Bellamy did not request additional written findings beyond the trial court's supplemental order, and therefore any error is deemed waived. RCr 11.42(6).
Furthermore, at the hearing on November 30, 2011, the trial court orally stated that Trooper Whitaker's affidavit appeared to be adequately supported on its face. As a result, the court concluded that counsel made a reasonable tactical decision not to challenge the validity of the search warrant. We conclude that the trial court's oral findings were sufficient to provide an adequate basis for appellate review.
As a preliminary matter, the Commonwealth now argues on appeal that any deficiency in Trooper Whittaker's affidavit is irrelevant because no search warrant was necessary to search the exterior of Bellamy's vehicle. We disagree. Although a search does not occur when the police merely observe a vehicle located in a public place, a warrant is necessary when the police encroach into an area where a person has a reasonable expectation of privacy. United States v. Jones, 132 S. Ct. 945, 952-53, 181 L. Ed. 2d 911 (2012). We have no difficulty in concluding that the physical seizure of Bellamy's vehicle, coupled with a detailed examination of its undercarriage, is such an area.
Consequently, we return to the central issue of the sufficiency of Trooper Whittaker's affidavit. The Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution both prohibit the issuance of a search warrant except upon a showing of probable cause supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized. In deciding whether to issue a search warrant, the issuing magistrate is to "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Lovett v. Commonwealth, 103 S.W.3d 72, 77-78 (Ky. 2003), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); (internal quotation marks omitted).
Probable cause for the issuance of a warrant exists when the totality of the circumstances creates a fair probability that contraband or evidence of a crime can be found. Beemer v. Commonwealth, 665 S.W.2d 912, 914 (Ky. 1984), citing Illinois v. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. In order for an affidavit in support of a search warrant to be sufficient, the information sworn to by the officer must establish a substantial basis for concluding that contraband or evidence of a crime will be found in the place searched. Id. An affidavit relying on wholly conclusory statements is insufficient to meet this requirement. Illinois v. Gates, 462 U.S. at 239, 103 S. Ct. at 2332-33.
In this case, Trooper Whitaker's affidavit sets out the scope of his investigation in considerable detail. But on the key matter of the identification of Bellamy's vehicle as the suspect vehicle, the affidavit merely states that Bellamy's vehicle matched the description of an oncoming vehicle seen by Gunter shortly before Wilkins was killed. Taken on its own, this is merely a conclusory statement without adequate foundation. The affidavit does not set out Gunter's description of the vehicle. Indeed, Gunter never was able to give more than a very general description of the vehicle which she saw that night. Trooper Whittaker did include additional information noting that Bellamy left shortly after Gunter and Wilkins and in the same direction. But without more specific information connecting Bellamy's vehicle to the hit and run, we must conclude that the affidavit was insufficient to warrant a finding of probable cause. See Coker v. Commonwealth, 811 S.W.2d 8, 9-10 (Ky. App. 1991).
However, United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420, 82 L. Ed. 2d 677 (1984), set out a "good faith" exception to the exclusionary rule requiring suppression of evidence obtained under an invalid warrant. In Leon, the United States Supreme Court recognized that the exclusionary rule is designed to deter police misconduct, id. at 916, 104 S. Ct. at 3417, and "[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id. at 921, 104 S. Ct. at 3419. Where the officer acts in good faith and has an objectively reasonable belief in the validity of the warrant, the resulting discoveries will not be rendered inadmissible despite the search warrant's subsequent invalidation. Id. at 918-22, 104 S. Ct. at 3418-20. The Kentucky Supreme Court adopted the good faith exception of Leon in Crayton v. Commonwealth, 846 S.W.2d 684, 686 (Ky. 1992)
Bellamy urges that the good faith exception is not applicable because Trooper Whittaker omitted material facts from the affidavit which caused it to be misleading. The omission of material facts from a search warrant affidavit may undermine a finding of probable cause when it is alleged that police officers procuring the warrant purposefully or recklessly omitted material facts with the intent to make the affidavit misleading, and when the affidavit, when supplemented by the omitted facts, would not have been sufficient to support a finding of probable cause. Guth v. Commonwealth, 29 S.W.3d 809, 810 (Ky. App. 2000), citing Commonwealth v. Smith, 898 S.W.2d 496, 503 (Ky. App. 1995).
As noted above, Trooper Whittaker's affidavit failed to state that Gunter was unable to give a detailed description of the oncoming vehicle which she observed the night of the accident. This clearly is a material fact bearing on the sufficiency of the initial probable-cause finding. On the other hand, Trooper Whittaker also failed to mention his own observations of Bellamy's vehicle, including the slight damage to the turn signal. The exclusion of both of these facts suggests that their omission was not intended to mislead the judge issuing the warrant. Furthermore, when the affidavit is supplemented with these additional facts, it would have provided a stronger basis for a probable-cause determination. Under the circumstances, there is a strong case for the application of the good faith exception of Leon.
In the context of an RCr 11.42 proceeding, Bellamy has made a showing that his trial counsel was deficient for failing to challenge the sufficiency of the warrant. If counsel had made such a motion, the focus of the proceeding would have been on the application of the good faith exception. While it is possible that additional evidence might have been presented to warrant a finding that the exception does not apply, Bellamy has not pointed this court to such evidence. Based on the record developed before the trial court, we conclude that the good faith exception would apply and the motion to suppress would have been denied. Consequently, we cannot find that Bellamy has shown prejudice as a result of any deficient performance by trial counsel. Therefore, we conclude that the trial court properly denied Bellamy's RCr 11.42 motion.
Accordingly, the order of the Ohio Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Teresa Young
Elizabethtown, Kentucky
Brian Butler
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky