Bouch v. State

Page 643

143 P.3d 643

2006 WY 122

Harry Joe BOUCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-176.

Supreme Court of Wyoming.

September 27, 2006.

Representing Appellant: Jason M. Tangeman, of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Before VOIGT, C.J., and GOLDEN, HILL^*, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Harry Joe Bouch entered conditional guilty pleas to one count of attempted second degree sexual assault and three counts of second degree sexual assault.¹ He reserved his right to appeal an adverse determination of a motion to suppress evidence seized from his home. We conclude that the district court erred in denying the motion to suppress. The affidavit in support of the search warrant was insufficient to establish probable cause. Accordingly, we reverse and remand with instructions that Mr. Bouch be allowed to withdraw his guilty pleas.

ISSUES

[¶ 2] We restate the issues as follows:

I. Did the search warrant affidavit provide a sufficient nexus to lead a reasonably prudent and cautious person to believe that there was a probability that evidence of the crime was located at the address to be searched?

II. Was Mr. Bouch's guilty plea entered involuntarily because he received ineffective assistance of counsel?

FACTS

[¶ 3] Mr. Bouch was charged in Converse County with fifteen assorted felony counts for various acts of sexual misconduct with his four minor daughters.² Mr. Bouch pled not guilty to all charges. He retained counsel and was represented throughout the proceedings. Prior to trial, Mr. Bouch filed a motion to suppress all evidence obtained from the execution of a search warrant at his residence, asserting that the affidavit presented to the magistrate did not establish probable cause. The district court held a hearing and received testimony from the law enforcement officer who had signed the affidavit in support of the application for the search warrant. The district court ruled that the affidavit did not establish a sufficient basis to search for most of the items that were seized, but denied the motion to suppress as it related to notes, letters, photographs, and a green box containing these items. Mr. Bouch sought interlocutory appellate review of the district court's decision. We declined to accept the petition for review.

[¶ 4] After his motion was denied, Mr. Bouch changed his plea pursuant to a plea agreement. He pled guilty to four counts, one as to each daughter, and the other eleven counts were dismissed. The pleas were conditional, pursuant to W.R.Cr.P. 11(a)(2).³ Mr. Bouch reserved the right to appeal the suppression determination. The district court sentenced Mr. Bouch to a prison term of sixteen to eighteen years on each count, to run concurrently, and imposed a $10,000 fine. A timely notice of appeal was filed. Prior to completion of the appeal process, Mr. Bouch's counsel died.

[¶ 5] Mr. Bouch's new appellate counsel filed a motion requesting that the case be remanded to the district court for an evidentiary hearing concerning the issue of ineffective assistance of trial counsel. We granted the motion, directing the district court to receive evidence and make findings regarding Mr. Bouch's claims pursuant to Calene v. State, 846 P.2d 679, 692 (Wyo.1993). Following remand, a hearing was held on March 2, 2005. The district court issued its findings and conclusions on March 10, 2005, concluding that Mr. Bouch had been deprived of the effective assistance of counsel with regard to the impact and meaning of his guilty plea. However, the district court also found that prejudice may not have been established, depending upon the legal impact of our decision in Rutti v. State, 2004 WY 133, 100 P.3d 394 (Wyo.2004). The parties thereafter provided supplemental briefing on appeal addressing the issue of ineffective assistance of trial counsel.

STANDARD OF REVIEW

[¶ 6] When evaluating the sufficiency of a search warrant affidavit we are guided by these principles:

An affidavit presented in support of a search warrant is presumed valid. Search warrant affidavits are tested by a less vigorous standard than those governing the admissibility of evidence at trial. We interpret a search warrant affidavit "in its totality in a `commonsense and realistic fashion.'" Because of the desire to encourage law enforcement personnel to seek warrants, any doubt should be resolved by sustaining the search.

In re T.J.S. v. State, 2005 WY 68, ¶ 10, 113 P.3d 1054, 1057 (Wyo.2005) (internal citations omitted).

DISCUSSION

[¶ 7] In his first issue, Mr. Bouch contends that the district court erred in failing to suppress evidence obtained pursuant to a search warrant. On February 12, 2003, a police officer applied for a warrant to search 233 North 6th Street in Douglas, Wyoming. He provided the magistrate with an affidavit in support of his application. In its entirety, the affidavit provided:

I, [Affiant], being first duly sworn according to law depose and state as follows:

1. That I am now, and have been at all times herein mentioned, a police officer for the Douglas Police Department, Douglas, Wyoming, and that all incidents and matters related herein took place and otherwise occurred in Douglas, Converse County, Wyoming.

2. On February 11, 2003, Bob Shinmori, a Social Worker with the Department of Family Services, Laramie Peak District, Converse County Field Office, hereinafter referred to as DFS, reported that he had received a report from Douglas High School counselor, Bonnie Lane, that HARRY JOE BOUCH had allegedly molested his adoptive daughters.

3. I made contact with [DB], who is approximately fifteen years and eleven months of age, having been born on or about March 7, 1987. [DB] told me that her father, HARRY JOE BOUCH, had exposed his penis to her three or four times since they have lived in Douglas. She further stated that he tried to have sexual contact with her, attempting to touch her sexually, while he exposed his penis.

4. [DB] further stated to me that her sisters [AB] and [IB] had told her that they had seen their other sister, [AMB] and their father, Harry, having sex.

5. I made contact with [AMB], who is approximately fourteen years and four months of age, having been born on or about October 31, 1988, and she stated that she had been sexually assaulted by Harry, and that her father made her write sexually explicit notes to guys by the names of Richard and Sam, and he hid the notes— one of which was found on the heating ductwork in the basement.

7. [sic][DB] stated that she had written notes on a calendar of when [AMB] and Harry had sex, and other incidents that had occurred. She further stated that her father had shown her Polaroid photographs of [AMB], one of which [AMB] was holding thong underwear that Harry had bought [AMB] and [DB], and another where she had her shirt off. [DB] stated that Harry then burned the photographs.

8. In cases of child molestation, there are frequently instances where the perpetrator has contacts through the internet and has accessed web sites displaying photographs of children, and may have placed photographs with respect to the victims on the computer hard drive or on web sites.

9. That this Affidavit is made in support of a warrant to search 233 North 6th Street, Douglas, Converse County, Wyoming, for journals, diaries, letters, notes, photographs, Polaroid camera, sex toys, pornography, computer hard drive, computer cds, disks, calendar, thong underwear.

Further your Affiant sayeth naught.

DATED THIS 12 day of February, 2003.

//signed by [Affiant]

The magistrate issued the warrant which authorized the search of 233 North 6th Street and the seizure of "journals, diaries, letters, notes, photographs, Polaroid camera, sex toys, pornography, computer hard drive, computer cds, disks, calendar, [and] thong underwear." The officer executed the search at 233 North 6th Street on February 12, 2003, during which time over seventy items were seized and inventoried.

[¶ 8] On appeal, the State readily concedes that the district court properly suppressed most of the seized items, and therefore, those items are not at issue in this appeal. For the sake of clarity, we will outline those items which, we agree, are not in dispute. The majority of the suppressed items were not identified in the warrant, including candy, receipts, pieces of lace and rope, paper towels, a slip, a bathrobe, halter tops, plastic bags, a floral purse with accessories, pillow cases, bed sheets, blankets, socks, bras, couch cushions, a computer mouse, a computer keyboard, an 8mm video tape, and eight pairs of girls' underwear in varying sizes. A diary, two computer towers, and two Polaroid cameras were also suppressed.

[¶ 9] Our review focuses upon the remaining items that the district court declined to suppress. During the search, law enforcement also located a green metal military box with a lock marked "MSSGT HJ Bouch" in the basement of 233 North 6th Street. Within the box were five Polaroid pictures, six letters, and a scrap of paper. Mr. Bouch contends that the district court erred in not suppressing these items as well.⁴

[¶ 10] At the hearing on the motion to suppress, the police officer who applied for the warrant testified. He was questioned regarding his training and experience and the circumstances of the warrant issuance. At the time of the hearing, he had been an officer for eight months. The officer testified that he held the lowest level of certification and that this case was his first felony investigation and his first warrant application. At the time he applied for the warrant, he had no experience investigating or dealing with someone accused of molesting a child or taking inappropriate photographs of a child. His only training in this regard...