Moss v. State
| Decision Date | 14 June 1988 |
| Docket Number | 3 Div. 603 |
| Citation | 536 So.2d 129 |
| Parties | B.T. MOSS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Charles M. Law, Montgomery, for appellant.
Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
B.T. Moss was convicted for the capital murder of Betty Jean Bailey and sentenced to life imprisonment without the possibility of parole. Four issues are raised on this appeal from that conviction.
Moss contends that there was no probable cause to support the search warrant obtained to search his residence. We disagree.
On the same day the crime was committed, Montgomery Police Officers J.A. Hamner and K.G. Ingle obtained a search warrant from a municipal court judge. In their affidavit, they stated the following facts. Sometime after 4:00 on the morning of July 13, 1985, the police learned that Moss had been shot. Moss said that he had been shot by unknown subjects while at Ms. Bailey's residence. The police went to Ms. Bailey's residence and discovered Ms. Bailey in an upstairs bedroom. She was bound with nylon cord and had been shot several times. A .32-caliber revolver, from which three shots had been fired, was located beside her body. At three o'clock that afternoon, in a small wooded area approximately thirty-five yards from Moss's residence, the police discovered "a hooded jacket with a bullet hole in the hood and a bullet hole in the chest, a tee shirt with two holes cut out, one small caliber slug, one pair of gloves, a pair of socks with blood stains and oil, a ... .357 handgun, a knife, and several live rounds of ammunition."
At the hearing on the motion to suppress, Officer Ingle testified to the following additional facts. The police knew that Moss knew the victim "real well." A small caliber handgun had been fired in the victim's bedroom and it appeared that Moss had been shot twice with a small caliber weapon. The victim appeared to have been shot with a large caliber handgun. The bullet holes in the clothing discovered in the wooded area near Moss's residence matched Moss's injuries. A .32-caliber slug was found in the clothing. The clothing and other items were located approximately half way between the victim's residence and Moss's residence. Moss gave the police several accounts of how he had been shot. "[T]he several stories he gave did not add up, they didn't make any sense, they were real contradictory to each other."
Under the totality-of-the-circumstances test for making the practical, common sense determination of probable cause of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the police had probable cause to believe that Moss was directly involved in the victim's murder and that evidence of his crime might be located in his residence.
The difficulty in this case is that the affidavit should have been more detailed and explicit. However, Officer Ingle testified that, in conjunction with the facts contained in the affidavit, he was "sure" he supplied the judge with additional information but he "couldn't tell you exactly what was said."
Officer Ingle also testified that the municipal judge "had several questions."
We are not prepared to find that Officer Ingle's affidavit was totally deficient and insufficient to support a finding of probable cause in and of itself. However, even "[a] 'bare bones' affidavit can be validated if it is supplemented with additional facts which the magistrate considered before determining that probable cause was present." Crittenden v. State, 476 So.2d 632, 634 (Ala.1985).
Moreover, even if the affidavit were found to be invalid so that it would not support a finding of probable cause, we would still find that the seized items were properly admitted into evidence because the officers exercised good faith in obtaining the search warrant. The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); McBride v. State, 492 So.2d 654,658 (Ala.Cr.App.1986). Although the "good faith" exception does not apply to a "bare bones" affidavit or one so lacking in indicia of probable cause as to render official belief in its existence unreasonable, the affidavit in this case was not so lacking. Crittenden v. State, 476 So.2d at 635.
Moss was convicted of the capital offense defined in Alabama Code 1975, § 13A-5-40(a)(4): "Murder by the defendant during a burglary in the first or second degree or an attempt thereof committed by the defendant." He argues that his motion for a judgment of acquittal at the close of the State's evidence should have been granted because there was no evidence that he was guilty of burglary. In particular, he contends that there was no evidence that he unlawfully entered or remained in the victim's residence.
The State's evidence shows that, after Moss had been shot but before the police and paramedics had arrived, he went to the residence of Mary Davis and Katie Stallworth, which was located about "three doors down" from his own residence. He told Mrs. Davis that he had been "ambushed" at the victim's house. He gave Ms. Stallworth a key and told her to keep it for him and not to give it to anyone. It was later determined that this key fit the victim's residence.
The victim's brother testified that the victim and Moss grew up together and had been called "cousins," although he did not know whether or not there was any actual relationship. Once or maybe twice a week, Moss would be at the victim's house.
Joanne Blackmon, the victim's first cousin, testified that the victim was dating Ceotis Baker at the time and that the victim had never dated Moss.
On the night of July 12, 1985, Ms. Blackmon, her aunt, Willie Mae Morrow, and the victim went to the dog track. Afterwards, they returned to the victim's residence. The victim did not go with Ms. Blackmon and Ms. Morrow to the Goal Post because she "was waiting on company."
The victim's brother lived in the same residence with the victim. On the night of July 12th, he locked the doors to the house and left the victim alone after Ms. Blackmon and Ms. Morrow departed.
Officer Marshall went to the victim's residence. The front door was locked. The back door was open. There were no signs of forced entry.
The victim was found in an upstairs bedroom. There were signs that there had been a struggle. The victim had been shot three times and cut on her wrist. There were no signs of forcible sexual intercourse in that there were no signs of injury to the genitalia. A nylon rope was loosely tied around the victim's left ankle, run up behind her back and wrapped three or four times around her neck and then tied to her right wrist.
Examination of body fluids revealed that the victim had engaged in sexual intercourse and that the secretions were consistent with Moss's blood type.
A mask made from a portion of a tee shirt was among the clothing found near Moss's residence. The remaining portion of the tee shirt was found in Moss's residence. Sewing thread consistent with that used in making the mask was also found in Moss's residence. Evidence of clothing fibers connected Moss to the clothing found in the woods and placed him at the scene of the murder. There was scientific evidence that both the victim and Moss had fired a weapon.
Moss contends that there was no evidence of burglary. Although the evidence that Moss entered or remained unlawfully in the victim's residence is circumstantial and is far from overwhelming, it is sufficient to support the inference that he did so. Moss did not live in the victim's residence. The house was locked. Although the victim was expecting company, she was and had been dating someone other than Moss. There were no signs of forced entry. There was evidence from which the jury could reasonably infer that Moss went to the victim's house prepared to commit a crime and that Moss wore a mask and a hood and was armed when he killed the victim. There was evidence of a violent struggle during which gunshots were fired by both the victim and Moss, both of whom were injured. In a statement to the police, Moss alleged that someone had left him a key to the victim's residence. He also stated that the door to her house was unlocked.
A similar factual situation and issue were presented in Johnson v. State, 473 So.2d 607, 609-611 (Ala.Cr.App.1985). In holding that the evidence was sufficient, this Court observed:
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