IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,087
STATE OF KANSAS,
Appellee,
v.
JOHN F. FRANCIS,
Appellant.
SYLLABUS BY THE COURT
1. When the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.
2. The constitutional standard for particularity of description in a search warrant is that the language be sufficiently definite to enable the searcher reasonably to ascertain and identify the items authorized to be seized.
3. If a trial court's findings from a Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), evidentiary hearing are based on substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court.
4. No choice of law question is presented when the laws of the implicated states do not differ on substantive issues.
5. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.
6. Where a weapon found in the possession of a defendant is identified as being similar to one used in the crime, the lack of positive identification goes to its weight as evidence and not to its admissibility.
7. As a rule of necessity the trial judge may exclude any evidence which may unfairly prejudice the defendant. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge.
8. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal where it appears from the whole record that substantial justice has been done.
9. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal.
10. Admissions made by the defendant, if relevant, are admissible under K.S.A. 60-460(g).
11. At trial, sequestration is not a right but is committed to the sound discretion of the trial court. In the absence of evidence that the presence of a witness prejudiced the defendant, the trial court's decision will not be reversed on appeal.
12. The scope of oral argument generally lies within the sound discretion of the trial court, and the court's rulings will form no basis for a reversal absent a showing of abuse of discretion.
13. If the instructions taken as whole properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error.
14. Under K.S.A. 22-3420(3), a trial court has a mandatory duty to respond to a jury's request for further information as to the law of the case. The manner and extent of the trial court's response rest in the sound discretion of the trial court.
15. An appellate court reviews the ruling on a motion to dismiss criminal charges as a sanction for prosecutorial action or inaction for abuse of discretion.
16. Where there has been no showing that the defendant suffered actual prejudice as a result of a prosecutor's misconduct, and alternative means of sanctioning the prosecutor exist for the violation, dismissal of pending charges with prejudice may constitute an abuse of discretion by the trial court.
17. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant's due process rights under the Fourteenth Amendment to the United States Constitution. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant.
18. Evidence materially affecting credibility of a key prosecution witness may be considered as exculpatory evidence.
19. A showing of materiality for exculpatory evidence requires a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
20. When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence, viewed in the light most favorable to the prosecution. The evidence is sufficient if the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In its review, the court does not pass upon the credibility of witnesses or weigh conflicting evidence.
Appeal from Johnson district court; JAMES FRANKLIN DAVIS, judge. Opinion filed October 27, 2006. Affirmed.
Bob L. Thomas, Thomas & Associates, LLC, Olathe, argued the cause, and Megan L. Harrington, of the same firm, was with him on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: John F. Francis appeals his conviction by a jury of first-degree murder. He claims numerous errors occurred at trial. Several of the errors relate to the admission of evidence. He also raises questions as to jury instructions, closing argument, jury questions, and posttrial motions.
FACTS
On February 18, 1998, Clem Hollingsworth IV died as the result of a gunshot wound which he sustained while a passenger in the back seat of a car driven by his mother. The shot was fired from another vehicle. The State's theory was that Hollingsworth was killed in revenge for the murder of Frederick Johnson.
About 8 months earlier, in June 1997, Clem Hollingsworth shot and killed Frederick Johnson and shot and wounded Jason Smith. Hollingsworth was arrested on June 20, 1997, and charged with Johnson's murder. On February 17, 1998, Hollingsworth's mother, Sharon Hollingsworth, paid the bond to secure her son's release from jail. Among the people who were notified pursuant to the Missouri victims' rights statute of Hollingsworth's release was Frederick Johnson's mother. Hollingsworth was shot and killed in the early morning hours of February 18.
Frederick Johnson was the brother of Richard Johnson and the cousin of the defendant, John Francis. Hollingsworth and Francis were friends. At the time of Frederick Johnson's death, Corey Shannon, another friend of Hollingsworth and Francis, was incarcerated in Missouri. A few weeks after Johnson's murder, Sharon Hollingsworth telephoned Shannon, then telephoned Francis as if the call were coming directly from Shannon, and listened to Shannon and Francis talk about the murder. Francis told Shannon that if he did not get Clem Hollingsworth, "he would get the next thing closest to him."
In early February 1998, before Hollingsworth's mother paid his bond, the defendant along with several other people had visited James "Tony" Gillihan at the KC Bail Bonding Company. They wanted to pay Hollingsworth's bond and get him released. They did not have enough money to pay the bond but urged Gillihan to let them pay less, saying, "You're not going to be on the bond very long." When Gillihan said he would not make the bond for the $5,000 they were offering, Francis said, "That's the motherfucker who killed my cousin a couple weeks ago," and reiterated that Gillihan would only be on the bond a couple of days. Gillihan refused to be involved. Then someone with Francis offered another $2,500 and said, "Don't worry about [it]; you're not going to lose anything. As soon as they find his body, you're off the bond." Later, after hearing that Hollingsworth had been killed, Gillihan called the TIPS Hotline.
Hollingsworth was released from jail at approximately 7:30 the evening of February 17. His mother picked him up, and they went to her house. After he showered, they went to visit relatives. At approximately midnight they picked up her friend Karen McCoy when she got off work. The three went to Harrah's in North Kansas City. As they were going into Harrah's, a young man recognized Clem Hollingsworth and greeted him.
At approximately 3 a.m., they left Harrah's with Sharon Hollingsworth driving, McCoy in the front passenger seat, and Clem Hollingsworth in the back seat. They drove south on I-35 and exited at the Shawnee Mission Parkway ramp. At the yield sign to get on Shawnee Mission Parkway westbound, a car with bright headlights came up behind them. As Sharon drove onto the parkway, the car with the bright lights drove quite close beside her–over the line into her lane. Sharon recognized the defendant in the front passenger seat of the other car.
Clem told Sharon to duck, and gunfire began. When the shooting died down, Sharon put the car in reverse and backed up. She sat up and made a U-turn, almost hitting a truck. Sharon saw two cars turn around to follow her as she drove eastbound. She could see arms outside the car that had been close on her driver's side, and more shots were fired from that car. Sharon pulled into a gas station, and McCoy ran inside to get help. Clem was lying on the back seat bleeding. He was taken by ambulance to the hospital, where he was pronounced dead.
Police recovered shell casings from the westbound lanes of Shawnee Mission Parkway near the ramp from I-35 and near the gas station Sharon had pulled into. A firearms examiner determined that they had been fired from at least 5 different firearms–three 9mm's, one .38 or .357 caliber, and one .40 Smith & Wesson or 10mm. A metal bullet jacket were retrieved from Hollingsworth's body during the autopsy and given to police.
A shoebox of ammunition was seized during the search of defendant's residence. Defendant's fingerprint was found on one of the boxes of ammunition in the shoebox. Four guns and a speed loader for a revolver also were seized from his residence. One of the guns, a .38 Special Taurus handgun, could have fired the bullet with the jacket retrieved from Hollingsworth's body during the autopsy.
DISCUSSION
MOTION TO SUPPRESS
On February 23, 1998, defendant's residence at 429 Topping, Kansas City, Missouri, was searched pursuant to a warrant. In a motion to suppress, defendant challenged the validity of the warrant and the underlying affidavit. The trial court denied Francis' motion. The trial court made the following findings of fact:
"On February 18, 1998, a homicide occurred along Shawnee Mission Parkway in Johnson County, Kansas. The victim, Clem Hollingsworth, was riding in the back seat of a moving vehicle when two other vehicles pulled along side him and began shooting into the car. The driver, Sharon Hollingsworth, and front seat passenger were uninjured. Clem was killed. This was done, apparently, in retaliation for Clem allegedly killing the defendant's cousin. Multiple types of firearms were used in the shooting. Over 40 bullet holes were found in the car. Sharon Hollingsworth identified the defendant as possibly being one of the perpetrators of the crime.
"On February 23, 1998, at approximately 8:00 p.m., the Kansas City, Missouri Police Department and members of the Metro Squad executed a search warrant on defendant's home at 429 Topping, Kansas City, Jackson County, Missouri. Police officers announced their presence by yelling 'police, search warrant' several times while the officers entered the dwelling by forced entry through the front door. The officers did not knock on the door prior to entry.
"The subsequent search of defendant's residence revealed the presence of four firearms, assorted ammunition, a shell casing, a plastic bag with white substance, and various documents."
On appeal, defendant does not dispute the facts found material by the trial court to its decision. When the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004).
Particularity of the warrant. The Fourth Amendment to the federal Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularity describing the place to be searched, and persons or things to be seized." The search warrant at issue stated that there is probable cause to believe that "[b]ullets, bullet fragments, weapons, shell casings, blood, bodily fluids, and other related trace and physical evidence related to a fatality shooting to victim, Clem Hollingsworth IV." Defendant contends that the term "weapons" lacks the necessary particularity. He suggests that the term "firearms" should have been used instead of weapons.
The requirement that warrants shall particularly describe the things to be seized prevents the seizure of one thing under a warrant describing another. Stanford v. Texas, 379 U.S. 476, 485, 13 L. Ed. 2d 431, 85 S. Ct. 506, reh. denied 380 U.S. 926 (1965) (citing Marron v. United States, 275 U.S. 192, 196, 72 L. Ed. 231, 48 S. Ct. 74 [1927]). The constitutional standard for particularity of description in a search warrant is that the language be sufficiently definite to enable the searcher reasonably to ascertain and identify the things authorized to be seized. Steele v. United States, 267 U.S. 498, 503-04, 69 L. Ed. 757, 45 S. Ct. 417 (1925). Hence, the specificity required hinges on the circumstances of each case. See United States v. Lowe, 50 F.3d 604, 607 (8th Cir. 1995).
In this case, the context in which the term "weapons" appears–bullets, bullet fragments, weapons, and shell casings–effectively defines the weapons to be seized as firearms. The term "weapons" in its context was sufficiently definite to enable the officers who executed the warrant reasonably to ascertain and identify that the things authorized to be seized were firearms. The warrant did not fail to describe particularly the things to be seized because it did not create a danger of mistake or of unlimited discretion in the executing officers' determination of what was subject to seizure. See United States v. Savoca, 761 F.2d 292, 298-99 (6th Cir. 1985) ("weapons" included in warrant's description of things to be seized, citing Andresen v. Maryland, 427 U.S. 463, 480, 49 L. Ed. 2d 627, 96 S. Ct. 2737 [1976]).
Knock and announce. Francis contends that the district court erred in denying his motion to suppress because the warrant was illegally executed by officers who failed to knock before entering his residence. Since Francis filed his brief, the United States Supreme Court has issued its opinion in Hudson v. Michigan, ___ U.S. ___, 165 L. Ed. 2d 56, 126 S. Ct. 2159 (2006), deciding that evidence seized when officers with a search warrant did not knock before entering a residence need not be excluded. A new rule for the conduct of criminal prosecutions is to be applied to cases pending on direct review, with no exception for cases in which the new rule constitutes a "clear break" with the past. United States v. Booker, 543 U.S. 220, 268, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 [1987]); see State v. Barnes, 278 Kan. 121, 124-27, 92 P.3d 578 (2004). The Hudson rule, in the circumstances of the present case, is controlling and the district court did not err in denying the motion to suppress on the ground that the officers failed to knock before entering defendant's residence.
Oath or affirmation. The Fourth Amendment requires warrants to be "supported by Oath or affirmation." The affidavit/application for the search warrant at issue identifies Laurie Borkowski as the affiant and applicant. But the person who signed the affidavit/application as the affiant and applicant was Detective Bennie White. Francis contends that the warrant was invalid on account of the discrepancy. He cites no authority for his position.
The State cites State v. Smith, 867 S.W.2d 343 (Tenn. Crim. App. 1993), in which, as in the present case, the signature of the affiant to a search warrant was that of a different person from the one named in the typed portion of the affidavit. The Tennessee court concluded that the discrepancy did not invalidate the warrant. Here is its full discussion of the issue:
"The search warrant contained an error of reference. 'Mike Phillips' was initially identified as the affiant. At the conclusion of the affidavit, however, the signature of Dorris Weakley, Sheriff of Cheatham County, appears on the affidavit. It is attested to by the issuing magistrate. The error is as obvious as it appears inadvertent. It does not qualify, as the defendant suggests, as a false allegation, recklessly made, so as to render the affidavit ineffective. In State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978), our Supreme Court established two circumstances authorizing the impeachment of a search warrant affidavit otherwise sufficient on its face:
(1) a false statement made with intent to deceive the Court, whether material or immaterial to the issue of probable cause, and
(2) a false statement, essential to the establishment of probable cause, recklessly made.
"This mistake appears to have been unintentional. It does not relate to the establishment of probable cause. The testimony established that Mike Phillips had nothing to do with the case." 867 S.W.2d at 350.
In Smith, following the defendant's argument, the Tennessee court applied the test for attacking the accuracy of an affidavit's content to the quite different question of the mismatch of typed name and signature. In Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), the Supreme Court held that a defendant will be given an evidentiary hearing on the veracity of a warrant affidavit after the warrant has been executed only where defendant makes specific allegations of deliberate falsehood or of reckless disregard for the truth and accompanies the allegations by an offer of proof. Allegations of negligence or innocent mistake are insufficient. It was on this basis that the Tennessee court dismissed Smith's concerns.
But the Franks analysis is misapplied to this issue where Francis' complaint is that the typed name and the signature do not match. He asserts, with no substantiation or reference to the record, the following: "Clearly, the affidavit was not sworn to by the affiant and the information contained in it would have been more accurate and more reliable had the affiant who applied for the search warrant signed it." But, not only is the assertion unsupported, it does not amount to an attack on the veracity of the affidavit. Francis contends that the information would have been more accurate and more reliable, but he does not contend that the information was not accurate or reliable.
K.S.A. 22-2511 provides: "No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused." Francis correctly maintains that the requirement of oath or affirmation supporting the warrant, which is expressed in the Fourth Amendment, is not a technical irregularity. But the actual contention here is not that the warrant lacked the support of an oath or affirmation. Rather, it is that the affidavit supporting the warrant bears the typed name of one person and the signature of another, which would not merit the constitutional inquiry advocated by Francis unless because of the discrepancy the person making the statement supporting the warrant had not done so under oath or affirmation. Here, that did not happen.
The evidence that an oath was duly administered to the person making the statement is the jurat, which follows the statement and is signed by the judge who issues the warrant. State v. Journey, 1 Kan. App. 2d 150, 151-52, 562 P.2d 138 (1977). In this case, the jurat form appears immediately beneath the signature lines of the assistant prosecutor and the affiant/applicant. The jurat states: "Subscribed and Sworn to me this 23rd day of Feb., 1998, at the hour of 5:16 PM," and it is signed on the signature line for the judge. The judge's completion and signing of the jurat signifies that an oath was duly administered to Detective Bennie White, the person who made the statement and signed as affiant and applicant.
False statements and reckless disregard for the truth. Francis contends that the affidavit contains false statements about Sharon Hollingsworth's identification of him, her description of a car, and the search of the vehicle parked behind defendant's residence. There is a presumption of validity with respect to an affidavit supporting a search warrant. If defendant alleges and supports his allegations with an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth, a challenge to the validity of an affidavit is permitted. Franks, 438 U.S. at 171. In this case, the trial judge permitted defendant to present evidence and argument on his motion to suppress, a portion of which pertained to his challenge to the veracity of the affidavit. "If a trial court's findings from a Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), evidentiary hearing are based on substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court." State v. Henry, 263 Kan. 118, Syl. ¶ 3, 947 P.2d 1020 (1997).
With regard to Francis' challenge to the veracity of the affidavit, the trial court stated:
"'There is a presumption of validity with respect to an affidavit supporting a search warrant and generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application.' State v. Jacques, 225 Kan. 38, 43, 587 P.2d 861 (1978). An exception to this rule is if the challenge is supported by allegations and proof under oath that 'the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth.' Id. at 44. Although the State generally bears the burden of proof on a motion to suppress, the defendant bears the burden of showing that any alleged falsehoods contained in an affidavit were deliberate or that there was a reckless disregard for the truth or that material information was omitted. Id.; State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982). The defendant has not met this burden. Moreover, the statements in the affidavit appear to the Court to be fair and accurate descriptions of the events that transpired. The warrant accurately describes Sharon Hollingsworth's identification of the defendant as varying in degrees of certainty. Affidavit, ¶ 6. The warrant indicates that Hollingsworth was unclear as to the exact make and model of the suspect vehicles. Affidavit ¶ 8. The affidavit points out the pros and cons of the case as it existed at the time the warrant was sought. The references to a January 21, 1998 search of defendant's car in ¶ 11 are mere typographical errors. The date should have been February 21, 1998. When taken as a whole, the Court finds that the affidavit does not contain deliberate falsehoods or a reckless disregard for the truth."
Defendant contends that the first sentence of Paragraph 5 of the affidavit is false. That sentence states: "Sharon Hollingsworth was able to identify an occupant of one of the suspect vehicles as being John F. Francis, BM, 061074." The defendant's position, as stated in his brief, is that "[i]f Sharon Hollingsworth was not 100% certain, and she was the only witness that places him at the scene of the crime, . . . it can not be considered a positive identification and is a false statement." Defendant is unable to cite any authority for his position. There is nothing false about the statement that Sharon Hollingsworth identified one of the people in the car as John Francis. Hollingsworth did identify Francis as one of the car's occupants. As the trial judge observed, there is a question about the certainty of her identification, but the level of certainty demonstrated by Hollingsworth is a separate subject and is forthrightly discussed in Paragraph 6 of the affidavit. It states: "Sharon Hollingsworth has been questioned on at least three separate occasions. Sharon Hollingsworth has wavered from being certain about having seen Francis in one of the suspect vehicles. As of the most recent interview which occurred on today's date Sharon Hollingsworth indicates that although not 100% certain she believes that the occupant is in fact John F. Francis."
Francis next complains of various problems with the information in Paragraphs 8, 9, 11, and 12 of the affidavit. Those paragraphs state:
"8. Sharon Hollingsworth described one of the vehicles from which shots were being fired as a larger gray four door possible an Oldsmobile or Chevrolet.
"9. On 02/20/98 John Francis was contacted by members of the Metro Squad for an interview. Francis refused to provide a statement. Located in the back of the Francis residence at 429 Topping in Kansas City Jackson County, Missouri was a Gray 1984 Chevrolet Caprice four door with Missouri license plate 915-BWS.
. . . .
"11. A search warrant for the vehicle parked behind the Francis residence was obtained on January 21, 1998 in order to recover evidence of bullets, bullet fragments, weapons, shell casings, and any other trace and or physical evidence including but not limited to latent prints, for comparison purposes to evidence being developed by the Metro Squad concerning the Hollingsworth homicide.
"12. The 1984 Chevrolet Caprice was searched pursuant to the warrant which was executed on January 23, 1998 by the Kansas City Missouri Police Crime Lab. The affiant believes that John Francis, BM, 06-10-74, who lives at 429 Topping, Kansas City, Jackson County Missouri has in his possession weapons used in the shooting death of Clem Hollingsworth IV. Although the vehicle is still being processed for the purposes of gunshot residue, no bullets, bullet fragments, weapons, or shell casings were recovered. Based upon the fact that John Francis was positively identified as a suspect and since weapons were not located in the car we now believe the items being sought are in the house."
Defendant's argument with regard to Paragraph 8 is a bit confusing–he states that the contents of the paragraph are true but are compromised by omissions of Hollingsworth's mistaken belief about ownership of the Chevrolet Caprice and of her not stating that guns were fired from both cars. He also asserts that no shots were fired from the gray vehicle, which challenges the truth of the contents of the paragraph.
At the Franks suppression hearing, Detective Michael Daniels testified that Sharon Hollingsworth's "vehicle descriptions were general . . . [b]ut they didn't change throughout her interviews. But they didn't match extremely close to some of the other witnesses that gave us vehicle descriptions." Daniels also testified that "from [Hollingsworth's] knowledge of vehicles and what she thought she saw that her descriptions of the vehicles has been fairly consistent." Daniels was shown some photographs, which are not in the record on appeal, and was asked to identify them. He testified:
"A. These are pictures of a Chevy that is parked behind 429 Topping."
"Q. Are those the pictures or at least copies of those pictures being shown to Sharon Hollingsworth in this video?
"A. They could have been. I really don't know."
Still referring to a video of Sharon Hollingsworth, which also is not in the record on appeal, Daniels was asked and answered the following questions:
"Q. Now, she is referring to the second vehicle. What's your understanding of the second vehicle involved?
"A. There were two vehicles that we had descriptions of that pulled up on either side or around the sides of her vehicle and then turned and followed her. As they were going back across Shawnee Mission Parkway the wrong direction, a truck driver told us that the vehicle[s] split and went on either side of his truck. One was described like a Chevy Caprice, a larger vehicle, and one was a smaller, maybe, like Sharon says, a Chevy or Oldsmobile-type vehicle.
"Q. In the second vehicle, Ms. Hollingsworth stated she doesn't know whether there were shots coming from that vehicle?
"A. That's correct.
"Q. When Ms. Hollingsworth is talking about the car that did the shooting, that's what we–commonly been referring to in this case as the first car?
"A. Right.
"Q. And the second car would be the car we don't know if there was any shooting; correct?
"A. That's right.
"Q. I'm going to approach and show you again Defendant's Exhibit G and F [photographs not in the record on appeal]. Would you agree with me that the car depicted in Defendant's Exhibit G and F is consistent with what has come to be known as the second car?
"A. Yes.
. . . .
"Q. So the vehicle depicted in Defendant's Exhibit G and F, could you tell the court whose vehicle that is?
"A. I don't recall who the registration is. Sharon says that it is Wee-Wee, and right now I can't even remember what his real name.
"Q. Frederick Johnson I think?
"A. Okay, that's it.
"Q. So Sharon says that is Wee-Wee's car?
"A. That's what she says, yes.
"Q. Sharon also says we don't know if there was gunfire coming from that car?
"A. That's what she told us, yes.
"Q. And Sharon places John Francis in the passenger seat of the car that was doing the shooting; correct?
"A. Yes."
The defendant's first contention is: "Omission of the fact th[at] Sharon Hollingsworth misidentified the vehicle which was owned by the Defendant's ex-wife and was later searched displays a reckless disregard for the truth by the affiant." It appears that defendant's contention refers to Hollingsworth's belief that the vehicle had belonged to Frederick Johnson, but her belief as to the ownership has no relevance to the establishment of probable cause to search defendant's residence. Second, he complains that the affidavit did not contain the information that "Sharon Hollingsworth d