Petition — Vittitow v. Kentucky

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SUPREME COURT OF THE UNITED STATES

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wo (47-1512

JOSEPH RAYMOND VITTITOW - - Petitioner

versus

COMMONWEALTH OF KENTUCKY ~-_ Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

J. MARSHALL HUGHES

WHITE and HUGHES Law Firm

439 Park Row Executive Bldg.

Bowling Green, Kentucky

Attorney for Petitioner

WESTERFIELO -BONTE CO ., 619 W. KENTUCKY—P .O. BOX 3251, LOUISVILLE » KY.

TABLE OF CONTENTS

PAGE

I ss Samide tee dee ve oe ae 1

oo ae ote cnr elf EEE ee DOT Le em 2

Questions Presented... .......................... 2

Constitutional Provisions... ..................... 2- 3

Statement of the Case................. 3 7

Reasons For Granting the Writ................._..

I. The Decision Below Presents A Substantial

Constitutional Question of Whether the Con-

viction of a Criminal Defendant in the Ab-

sence of Evidence Proving One of the Essen-

tial Elements of a Crime is a Violation of Due

Process of Law, the Resolution of Which is in

Conflict Among the Various Federal and State

NS bh hice 8-15

II. The Admission Into Evidence of Fruits of the

Warrantless Search of Appellant’s Automo-

bile Presents a Substantial Constitutional

Question Concerning a Criminal Defendant’s

Fourteenth Amendment Due Process Right to

UY WE Nac tekip eee 15-20

III. The Admission Into Evidence of Exhibits and

Testimony Regarding Photographs Which

Were Not Shown to Appellant’s Counsel Until

the Midst of the Trial Presents a Substantial

Constitutional Question Concerning a Criminal

Defendant’s Fourteenth Amendment Due

Process Right to a Fair Trial.............. 20-23

SI «00 Ghd UG Sctwy ests lucie A ke 23-24

I te esc eera eee nearer la-lla

Opinion of Court of Appeals of Kentucky......... la

Mandate, Court of Appeals of Kentucky.......... 2a

Portions of Testimony... ... 2.060. cccccccccccce. 2a- Ya

TABLE OF CASES AND AUTHORITIES ™

Statutes : PAGE

I dooce ends, DP | ee 12

Cases: PAGE | trea le ade erg eA S

Hodges v. Commonwealth, Ky., 473 S. W. 2d 811, a

a Cn ya © aeekkn CORR eemuaies bse cl 10-11 Constitutional Provisions:

Guthrie v. Commonwealth, Ky., 508 S. W. 2d 40 U. S. Constitution, Amendment XIV............. 2 3

| SR per mers barr Mend Nuit, pt Ban ayes 11

Johnson v. Commonwealth, Ky., 443 S. W. 2d 20

Rr re ee a Pe 11

Shanks v. Commonwealth, Ky., 504 S. W. 2d 709

SENG © @ © 40000600 cheese eel eeauiesis ae 12 |

Ralya v. Commonwealth, Ky., 495 S. W. 2d 506

Per ey Here Se em ADe Te he Ee 12

United States v. Velasquez, 496 F. 2d 1009, 1010

eB ee GS, Ns os bh het besccdceuuka<: 13

Vick v. United States, 216 F. 2d 228, at 232 (5th

8 Freer rere er ee 13

United States v. Horton, 488 F. 2d 374 (1973)..... 13-14

Commonwealth v. Lewis, 309 Ky. 276, 217 S. W. 2d

ee SN 56 44 wks SKE is oem es 16

Senibaldi v. Commonwealth, Ky., 338 S. W. 2d 915,

PN Wo 4 Wesvduiiees ven uetiees reel. 16

Flannery v. Commonwealth, Ky., 324 S. W. 2d 128,

FR ree py es Rig ae 16-17

Tabor v. Commonwealth, Ky., 380 S. W. 2d 245,

ME ES 4% 24 5'ct ncn Bats UR ee 17

Preston v. United States, 376 U. S. 364, 11 L. Ed.

Nee EE 8a B Xbevcc cbr everds cS. 17-18

Ison v. Commonwealth, Ky., 471 S. W. 2d 712,

CN EE Sg go ce oe eee ee 18-19 j

Joseph v. Commonwealth, Ky., 324 S. W. 2d 126

NS HCP end conc e Gaus cu erceen tice 19-20

Roaden v. Kentucky, 93 S. Ct. 2796 Se, » ok dves 19 }

Johnson v. United States, 333 U. S. 10 at 13-14,

92 L. Ed. 436 at 440 (1948).................. 20

James v. Commonwealth, Ky., 482 S. W. 2d 92, |

eee PR ey | tA ei 21

— _ (7

ee is Ae as Ow

SUPREME COURT OF THE UNITED STATES

No.

JOSEPH RAYMOND VITTITOW - - Petitioner

Vv.

COMMONWEALTH OF KENTUCKY : Respondent

PETITION FOR A WRIT OF CERTIORAI TO THE

COURT OF APPEALS OF KENTUCKY

The Petitioner, Joseph Raymond Vittitow, respect-

fully prays that a writ of certiorari issue to review

the judgment of the Court of Appeals of Kentucky af-

firming the conviction of the Petitioner in the Warren

Circuit Court at Bowling Green, Kentucky.

OPINIONS BELOW

The Trial Court rendered no written opinion in this

case. The opinion of the Court of Appeals of Ken-

tucky was a memorandum opinion, not to be cited as

authority, which will not be reported. It is printed in

the Appendix to this petition at page la. The man-

date of the Court of Appeals of Kentucky denying the

Petitioner’s motions for rehearing appear in the Ap-

pendix at pages 9a-1la,

to

JURISDICTION

The Judgment of the Court of Appeals of Kentucky

was entered on October 25, 1974. A timely petition

for rehearing and supplemental petition for rehearing

(due to change of counsel) were denied on February

21, 1975. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1275 (3).

QUESTIONS PRESENTED

I. Whether the Petitioner was denied his fourteenth

amendment right of due process of law because he

was convicted of a crime in the absence of evidence

proving one of the essential elements of the offense?

II. Whether the Petitioner was denied his fourteenth

amendment right of due process of law where the

trial Judge allowed admitted into evidence the fruits

of a warrantless search of Petitioner’s automobile?

III. Whether the Petitioner was denied his fourteenth

amendment right of due process of law where the

trial Judge allowed admitted into evidence exhibits

and testimony regarding photographs which were not

shown to defense counsel until the midst of the trial?

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment

Section 1. All persons born or vaturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State where-

in they reside. No State shall make or enforce any law

which shall abridge the privilege or immunities of cit-

"

v

izens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its jur-

isdiction the equal protection of the laws.

STATEMENT OF THE CASE

The Petitioner, Joseph Raymond Vittitow, was in-

dicted for storehouse breaking and grand larceny re-

lating to a break-in of a drugstore in the small War-

ren County community of Smiths Grove in the early

morning hours of August 22, 1973.

Separately indicted on the same charges arising out

of the same incident were one Eugene Byrns and one

James Stillwell. Byrns pled guilty, but Stillwell was

still at large on the date of Vittitow’s trial. Vittitow

was tried alone. Co-defendant Byrns didn’t testify at

the trial and no eyewitnesses identified Vittitow as a

participant in the break-in. The case for the prosecu-

tion was solely circumstantial.

The drugstore was owned and operated by a Mr.

Bevarly who lives four and a half blocks from his

store (Transcript of Evidence, hereinafter T.E., p.

75). Around 1:30 on the morning of August 22, 1973

Beverly was signalled by an alarm system in his store

(T.E. 77). While his wife called the sheriff, he ran to

the store, gun in hand. Arriving at the rear of the

store, he saw three silhouettes of men as they came up

on the roof from a small hole (T.E. 155) which had been

torn in it (T. E. 83). He alerted them of his presence,

and two men jumped off the roof on the side of the

a a =

4

building away from Bevarly, leaving a distinet boot

print in the ground (T.E. 82-84). The third man,

Byrns, Jumped off the reof close to Bevarly, and so

Bevarly, with his shotgun, captured him and held him

until the authorities arrived (T.E. 82-83, 85-86, 88).

Meanwhile, a neighbor responding to a call from Bev-

arly’s wife, drove up in front of the store. As his

ear’s lights shone on the store’s window, he saw three,

unidentifiable men inside the store, scurrying toward

the rear where the small hole in the roof was later

found (T.E. 128-130).

When the sheriff’s officers and the Smiths Grove

Chief of Police arrived, an inspection of the premises

disclosed that a sizeable quantity of wrist watches and

drugs had been assembled under the roof hole appar-

ently in preparation for asportation (T.E. 167). Also

discovered and carefully preserved, was a distinct boot

print in the dirt, probably made by one of the burglars

when jumping off the roof (T.E. 160, 98). A photo-

graph was made of this boot print and introduced at

trial (T.E. 64-65).

When the authorities arrived at the scene they

searched the captured Byrns. Found on him were

several watches and drugs which came from the drug-

store (T.E. 100-165-6). Later, clothing worn by Byrns

was placed under laboratory analysis, and particles of

ceiling tile and wood fibers found on him matched the

tile and fibers around the hole in the store roof (T.E.

71-75).

Within a short time after the authorities arrived

ut the store, Chief of Police Denham was sent in his

5

car to survey the community in search of the suspects

remaining at large. After scouting several blocks with

his search light, Denham noticed a car turning toward

him off of another street. The car, coming from a di-

rection away from the drugstore (T.E. 150), turned

onto the street on which Denham was traveling, turned

off its lights, pulled to the side of the street and parked.

The only occupant, Vittitow, got out and walked toward

a nearby house (T.E. 140-1). Chief Denham drove up

to the parked car and called out to him. Subsequently,

Vittitow walked over to Denham’s car and in response

to questioning, explained that he was hunting water

for his car which he believed to be hot. Seeing no

steam from Vittitow’s car and suspecting the stranger’s

story ( Vittitow was from Louisville), Denham directed

him to get in the police car. Vittitow did as directed

without any resistance, and was taken to the drugstore

(T.E. 13-15).

At the store, Deputy Woods from Bowling Green

came up and asked Vittitow to raise his right foot up,

whereupon once he did, Major Woods placed him under

arrest for storehouse breaking (T.E. 15, Testimony of

Chief Denham), Major Woods, on the other hand, re-

called that Vittitow was not placed under arrest for

about twenty minutes after Denham brought him to

the drugstore (T.E. 114). Within minutes (T.E. 117)

of the ‘‘official arrest’’ Vittitow was placed in a police

vehicle and taken to the county jail in Bowling Green.

Just before or just after he was put in the police car,

Major Woods sent Chief Denham back to the parked

ear of Vittitow’s to search it (T.E. 116-8). Prior to

6

that a search of his person had been effected, and noth-

ing was found on him (T.E. 119 and 73-4).

However, in Vittitow’s car Denham found two bill-

folds; one containing papers identifying Byrns and

the other, Stillwell (T.E. 118, 163-5). (No connection

of Stillwell with the burglary was ever shown).

Approximately six weeks prior to trial, Vittitow

filed motions for discovery. (Court Transcript 7-8),

requesting, inter alia, inspection of all exhibits which

the Commonwealth intended to use at trial, and under

the principle of Brady v. Maryland, 373 U. 8. 83 (1963),

all exhibits which the Commonwealth might have but

did not intend to use at trial. The Commonwealth re-

sponded (Ct. Trans. 12) agreeing to inspection of ap-

pellant’s counsel of its exhibits and stating, ‘*Any

photographs, exhibits, maps or diagrams in the pos-

session of the Commonwealth will be used in the trial

and entered into evidence.’’ Appellant’s counsel made

an inspection of exhibits several days prior to trial

pursuant to the circuit court’s order directing pro-

duction (Ct. Trans. 13; T.E. 122-3).

At trial, the Commonwealth introduced, over ob-

jections, a key purportedly taken from Byrns which

fit the ignition of Vittitow’s car. This key had not

been shown to appellant’s counsel until the morning

of the second day of trial, about one hour before its

introduction as evidence (T.E. 122-4).

At trial, the Commonwealth’s introduced, over ob-

jections, a key purportedly taken from Byrns which

fit the ignition of Vittitow’s ear. This key had not

been shown to appellant’s counsel until the morning

i

of the second day of trial, about one hour before its

introduction as evidence (T.E. 122-4).

At trial, the Commonwealth’s scientific expert and

head of the mobile crime lab, Al Burnett, testified that

he photographed the boot print found at the scene,

and the photos were introduced into evidence (Com-

monwealth’s exhibits 5 & 6, T.E. 64-5). The photo-

graphed boot print did not match the boots of Vitti-

tow (Defendant’s exhibit 1, T.E. 73, 187-8).

However, when faced with this difference between

the photographed print and the boots of this appellant,

Major Woods asserted there had been other boot prints

at the scene, but the photographs of them did not come

out clear enough (T.E. 160-1, 186-9). These unclear

photos, or their existence, were never revealed to ap-

pellant’s counsel until the trial testimony just cited;

and they were not introduced into evidence or produced

for inspection by counsel.

Prior to trial, appellant moved to suppress the two

billfolds seized in the search of his car. A hearing was

begun just before the trial and continued, during re-

cesses, while the trial progressed. The motion was

overruled (T.E. 1-37; 104-127). nm

The appellant renewed his suppression motion and

moved for a judgment of acquittal, at the conclusion

of the Commonwealth’s case, because the evidence was

insufficient to sustain a conviction. The motions were

overruled (T.E. 204-7, 210), and the case was submitted

to the jury, whereupon Vittitow was acquitted by the

jury of the charge of storehouse breaking but convicted

of grand larceny (Ct. Trans. 21; T.E. 236).

REASONS FOR GRANTING THE WRIT

I. The Decision Below Presents a Substantial Constitu-

tional Question of Whether the Conviction of a Crim-

inal Defendant in the Absence of Evidence Proving One

of the Essential Elements of a Crime is a Violation of

Due Process of Law, the Resolution of Which is in Con-

flict Among the Various Federal and State Jurisdictions.

The jury in the trial below determined there was

insufficient evidence to convict Raymond Vittitow of

storehouse breaking, and acquitted him on that charge.

But, the jury convicted him of grand larceny on the

basis of proof by association of both Vittitow and

Byrns with the automobile Vittitow was driving, con-

trary to KRS 433.220.’

There was no proof, whatever, of appellant Vitti-

tow’s association with the burglarized drugstore. In-

deed, the evidence at trial effectively disproved any con-

nection between Vittitow and the store:

(1) Three men were seen inside the store as the

burglary was discovered (T.E. 129).

(2) Three men came up to the roof of the building

to jump off (T.E. 82-3).

(3) The three men obviously descended into the

store and came up to the roof through a torn two-foot

square hole (T.E. 155).

1KRS 433.220 Grand Larceny—Taking of vehicle without con-

sent of owner. Any person guilty of larceny of money or other

property of the value of one hundred dollars ($100) or more shall

be confined in the penitentiary for not less than one (1) nor more

than five (5) years. Any person who unlawfully takes, drives

or operates a vehicle without the knowledge and consent of

the owner shall be subject to the same punishment. (1194, 2739¢-

98: amend. Acts 1962, ch. 245 § 1)

y

(4) The one man captured at the scene, Byrns,

was covered with wood fibers and ceiling tile from the

hole in the roof of the store (T.E. 68-73).

(5) No trace of fibers, tile, or any element from the

store building was found on Vittitow, his clothes, or the

ear he was driving (T.E. 73-4; 175).

(6) The captured Byrns had his pockets and cloth-

ing filled with watches and drugs from the store (T.E.

100-1).

(7) Neither Vittitow nor the car he drove possessed

any loot from the burglary (T.E. 120-1, 175).

(8) A boot print was made by a burglar jumping

off the roof (T.E. 64-6; 98).

(9) Vittitow, who weighs 200 or more pounds and

who was wearing boots did not make the boot prints

(T.E. 192, 187, 73, 188).

(10) The two burglars who jumped off the roof and

escaped ran away on foot (T.E. 84). The Smiths Grove

Chief of Police, who has lived in that small commun-

ity all his life (T.E. 124), learned when he arrived at

the scene that the escaping burglars had been heard

running toward the Oakland Road (T.E. 131). But,

when it was pointed out to him that the Oakland Road

was in the opposite direction from when Vittitow was

driving when discovered, Chief Denton allowed that he

was confused about the location of the roads around

Smiths Grove, and the burglars had been heard running

toward the Rocky Hill Road (T.E. 144-5), the opposite

direction from where the car was.

(11) In any instance, Vittitow was arrested ap-

proximately one-half mile from the drugstore, coming

1U

from a direction away from the store (T.E. 150). He

was not puifing or perspiring as if he had been running

on that August night (T.E. 142-3).

The Commonwealth did prove that a break-in oc-

curred at the Smiths Grove Drugstore in the dark of

August 22, 1973; and three men were involved, one of

whom was Byrns.

Allowing the Commonwealth the benefit of some

reasonable inferences, appellant Vittitow was shown

to have been in Smiths Grove not long after the com-

mission of the crime, driving an auto with out of

county license plate, in which a wallet of Byrns was

found (that is, assuming, arguendo, that the evidence

complained of above was properly admitted. And it

should be remembered that no evidence connected the

auto to the crime in any way).

In the case of Hodges v. Commonwealth, Ky., 473

S. W. 2d 811, 814 (1971), Hodges was tried and con-

victed of breaking and entering a storehouse because

he was caught hiding under a log on a January day in

a nearby woods with the man who had been seen run-

ning from the victimized building. When Hodges and

his companion were found behind the log they ran

from the lawmen. When Hodges appealed, the Court

reviewed a number of its decisions relating to cireum-

stantial cases and sufficiency of evidence and concluded :

se

It is obvious that strong suspicion of

Hodges involvement in the crime arises from the

circumstances shown. Suspicion alone is not

enough. (Citations omitted) Hodges had no duty

to explain why he was where the officers found him.

11

There is nothing in the competent evidence which

indicates that Hodges was at the crime scene, nor

is there anything other than his being found with

Moore five hours after the latter’s flight from the

store, tending to prove his complicity in the crime.

These circumstances, suspicious though they are,

do not point so unerringly to Hodges involvement

as to warrant submission of the case to the jury.”’

Although Alonzo Hodges had been found guilty be-

cause (1) he associated with a criminal, (2) his asso-

ciation with that criminal was in a suspicious location

at a suspicious time, and (3) he tried to run away

when found together with the criminal. Yet, that was

not enough.

Vittitow was found guilty of grand larcency be-

cause (1) the jury could readily infer that he had as-

sociated with Byrns (the wallet in his car), (2) his lo-

cation not long after the crime was suspicious, and (3)

just as Hodges had run, Vittitow denied knowing

Byrns (T.E. 99). Thus, in this case, that was not

enough.

In Guthrie v. Commonwealth, Ky., 508 S. W. 2d 40

(1974), the Court of Appeals held that suspicion of

commission of felony is insufficient to authorize arrest.

The Court went on to explain,

‘In Johnson v. Commonwealth, Ky., 443 8. W. 2d

20 (1969), we inadvertently indicated at page 22,

that a police officer is authorized to arrest ‘* * *

on suspicion of the commission of a felony

Suspicion alone is insufficient.”’

* *& &)

12

And the Court went on to cite KRS 431.005, the statute

authority.

In Shanks v. Commonwealth, Ky., 504 8S. W. 2d 709

(1974), the appellant argued that the warrantless

search was not incident to a valid arrest, therefore the

search was impermissible. And, until the police of-

ficers entered the motel room, their testimony disclosed

that they had observed nothing which justified Shanks’

arrest. ‘‘Since it (the arrest) was without warrant, it

could be valid only if for a crime committed in the

presence of the arresting officer or for a felony of which

he had reasonable cause to believe defendant guilty.”’

There having been no probable cause for arresting

Shanks revealed by the adduced testimony, the items

seized should not have been admitted into evidence.

So the Court stated that the search and seizure could

not be validated under any of the carefully drawn ex-

ceptions to the constitutional requirement of a war-

rant. The Court reversed the judgment.

In Ralya v. Commonwealth of Kentucky, Ky., 495

S. W. 2d 506 (1973), the Court of Appeals held that

the rule on the sufficiency of circumstantial evidence

to establish the corpus delicti is that it must be more

consistent with guilt than with innocence; that in evi-

dentiary matters the law looks for reasonable prob-

abilities, and even in a criminal case a jury may prop-

erly believe that which the evidence fairly indicates to

have been reasonably probable. The Court went on

to say that though possession alone will justify con-

viction of theft (if the theft is proved), it will not suf-

fice to prove a breaking and entering. (In that case

13

the defendant was convicted for breaking and entering

and stealing a license plate.) The Court went on to

affirm the lower court except as to the conviction for

breaking and entering, for which they reversed, and

stated that if the evidence be the same, the defendant

shall be entitled to a directed verdict of acquittal.

In United States v. Velasquez, 396 F. 2d 1009, 1010

n.1 (Sth Cireuit, 1974) that Court stated that ‘‘In cir-

cumstantial evidence cases the test to be applied on

motion for judgment of acquittal and on review of

the denial of such motion is not simply whether in the

opinion of the trial judge or of the appellate court the

evidence fails to exclude every reasonable hypothesis,

but that of guilt, but rather whether the jury might

reasonably so conclude. Vick v. United States, 5 Cir.

1954, 216 F. 2d 228, at 232.’’ The Court noted in

Velasquez that the appellants began correctly by recog-

nizing the general rule that the verdict of a jury must

be sustained if there is substantial evidence, taking

the view most favorable to the Government to support

it.

Finally, on this point, probably the best case to

parallel the case at bars is that of United States v. Hor-

ton, 488 F. 2d 374 (1973), in that the Court considered

whether there was sufficient evidence in the record to

sustain in the conviction of the co-defendant Jordan.

The Court said that in circumstantial evidence cases,

the trier of fact must ‘‘reasonably find that the evi-

dence excludes every reasonable hypothesis, except

that of guilt.’ Further, the Court stated that in meas-

uring the sufficiency of evidence against this standard,

14

‘‘we must affirm any conclusion that could be reached

by reasonable minds’’. The record in that case dem-

onstrated Jordan’s proximity to the illegal substance

and the person who had control over it, but the Court

held it insufficient to sustain his conviction. They said:

‘‘Jordan denied knowledge of the existence of the

heroin or of any transactions involving drugs. As pre-

viously stated, the attache case containing the heroin

belonged to Horton although it was found in Jordan’s

automobile (emphasis ours). Furthermore, the evi-

dence does not establish any type of ‘working relation-

ship’ between the parties regarding the heroin but

merely an association . .. we reverse and remand with

instructions to enter a judgment of acquittal with re-

spect to defendant Jordan.’’

All of the evidence introduced by the Common-

wealth did not add up to enough to produce more than

a strong suspicion. That, as this Court has said so

many times, is not enough; and the trial court should

have sustained appellant’s motion for a judgment for

acquittal (T.E. 204-207, 210).

And that, as appellant has shown, was more than

the Commonwealth was entitled to introduce. Without

the billfolds, the fruit of the illegal search of the auto,

and without the key found on Byrns, produced from

hiding midway through the trial, the Commonwealth

could not even charge guilt by association.

The verdict of the jury, acquitting appellant of

storehouse breaking but convicting him of grand lar-

ceny, is especially confusing. It is apparent, that the

jury concluded that Vittitow did not enter the drug-

15

store. But he was in Smiths Grove that night. The

jury, it appears, determined that such unexplained as-

sociation was too sinister to allow the appellant to go

free. But, if the jury determined that the appellant

was not at the store, as they did to render such a ver-

dict, then the appellant should be freed. All evidence

of the Commonwealth pointed to three participants in

the burglary—no more. All three were inside the

store. All three ran up to the roof and jumped off, and

ran in different directions from where Vittitow was

found. There is no foundation in evidence or reason-

able inferences from the evidence to cogently support

a ‘‘fourth man”’ theory, which the jury must have cre-

ated. Therefore, the verdict is neither based upon

nor sustained by sufficient, competent evidence, and it

should be overturned.

Il. The Admission Into Evidence of Fruits of the War-

rantless Search of Appellant’s Automobile Presents a

Substantial Constitutional Question Concerning a

Criminal Defendant’s Fourteenth Amendment Due

Process Right to a Fair Trial.

At the request or direction of the Police Chief, Vit-

titow left his car parked on the side of a street and

rode several blocks (about a half-mile: T.E. 150-1) in

a police vehicle to the drugstore. About twenty min-

utes after the Chief brought Vittitow to the scene of

the crime, he was ‘‘officially arrested’’ (T.E. 114) and

the Chief was sent back to the parked car to search it

(T.E. 118).

16

The Chief asserted that after he got in the car, he

found the billfolds of Byrus and Stillwell lying on the

floorboard partially exposed and partially under the

passenger seat. (This attorney has never known an

item seized from under a car seat to be other than

‘‘partially exposed’’ to the view of the searching of-

ficer.) After finding the billfolds, the Chief returned

to his police car and drove back to the drugstore, and

delivered his find to Major Woods (T.E. 134-135).

One could argue that Major Woods effected the ar-

rest of Vittitow in front of the drugstore twenty

minutes after Vittitow’s arrival. Or an argument

could be sustained that the appellant was arrested by

Chief Denham twenty minutes earlier, right after he

accosted the stranger looking for water for his ear. But

these arguments would not be significant:

‘“‘It may have been 10 minutes, as contended by the

Commonwealth, before the search was made at the

garage, or it may have been 10 hours. In this case

the element of time is immaterial.’’ Common-

wealth v. Lewis, 309 Ky. 276, 217 8. W. 2d 625,

626 (1949).

‘The search was conducted without a warrant,

without Senibaldi’s (the appellant) consent, and

outside his presence. Thus it was an legal

search.”’ Senibaldi v. Commonwealth, Ky., 338

S. W. 2d 915, 919 (1960).

‘Evidence obtained by a search made after an

arrest, but not made in the immediate presence of

the arrested person or incident to the arrest is in-

admissible ... The search was made sometime after

the arrest and after both appellant and the truck

oo -_

17

had been brought to Morehead. It was not made

incident to the arrest nor in appellant’s immediate

presence. It was prejudicial error to admit the

evidence obtained as a result of the search.’’ Flan-

nery V. Commonwealth, Ky., 324 8. W. 2d 128, 129

(1959).

‘*We have several times held such evidence inad-

missible where it was not made incident to an ar-

rest or in the accused’s immediate presence.”’ Ta-

bor v. Commonwealth, Ky., 380 S. W. 2d 245, 246

(1964).

The Court of Appeals of Kentucky has repeatedly

held the principle in Preston vy. United States, 376

U.S. 364, 11 L. Ed. 2d 777 (1964), before and since it

was enunciated.

The Commonwealth, in the case at bar, sought sup-

port for this warrantless search on some basis other

than as incidental to the arrest. But there is no sup-

port in law for that occasion:

‘*Warrantless searches are per se unreasonable

under the Fourth Amendment to the Constitution

of the United States ‘subject only to a few spe-

cifically established and well-delineated exceptions

which are jealously and carefully drawn.’ Cool-

idge v. New Hampshire, 403 U. S. 443... Our in-

quiry in this case is whether the warrantless search

can be justified under one of these ‘established and

well delineated’ exceptions.”’

“The Collidge case reaffirms the basic holding in

Carroll v. United States, 267 U. S. 132... that

was approved in Chambers v. Maroney, 399 U. S.

42... The Carroll decision was that contraband

18

goods concealed and illegally transported in an

automobile may be searched for without a warrant

provided that ‘the seizing officer shall have reason-

able or probable cause for believing that the auto-

mobile which he stops and seizes has contraband

liquor therein which is being illegally trans-

ported.’ ’’ Ison v. Commonwealth, Ky., 471 8. W.

2d 712, 713-714, (1971).

The Commonwealth in the case at bar cannot sup-

port an assertion of reasonable cause to believe that

contraband was being illegally transported, for the loot

of the burglary was left in the drugstore by the dis-

covered burglars when all three jumped off the roof

and ran. Byrns, the captured one, had only a few

stolen items in his pockets, and the tools involved were

left on the roof (T.E. 64-5). Nothing was left to the

burglars to transport in a ear.

Security of the car cannot be cogently claimed a

basis for Denham’s (the Police Chief) return and

search. He left the car unattended for at least twenty

minutes while the officers at the crime scene decided

whether they should ‘‘officially arrest’’ Vittitow. In

addition, as soon as Denham found the billfolds in the

car, he left it again, without any provision or concern

for its security.

The record shows that ‘‘ Vittitow’s car’’ was in fact

registered to another man, and not his own car (T.E.

170). Appellant’s standing to challenge the search of

this car may be contested. Yet there should be no

question of his standing in the instant case, for in light

of Joseph v. Commonwealth, Ky., 324 8S. W. 2d 126

19

(1959), the Court held that the defendant who fled

from a borrowed car had standing to challenge the sub-

sequent warrantless search and reversed the conviction

because the search was unreasonable.

In Roaden v. Kentucky, 93 S. Ct. 2796 (1973), the

Court said: ‘“‘. . . Where there are exigent circum-

stances in which police action literally must be ‘‘now

or never’’ to preserve the evidence of the crime, it is

reasonable to permit action without prior judicial eval-

uation’? and *‘The Fourth Amendment proscription

against ‘unreasonable . . . seizures,’ applicable to

the States through the Fourteenth Amendment, must

not be read in a vacuum. A seizure reasonable as to

one type of material in one setting may be unreason-

able in a different setting or with respect to another

kind of material. Cf. Coolidge v. New Hampshire, 403

U.S. 443, 471-472 . . . The question to be resolved

is whether the seizure of the film without a warrant

was unreasonable under Fourth Amendment standards

and, if so, whether the film was therefore inadmissible

at the trial. The seizure of instruments of a crime,

such as a pistol or a knife, or ‘contraband or stolen

goods or objects dangerous in themselves’ . . .”

Petitioner reiterates that there were no fruits of a

crime in the car, for the ‘‘fruits’’ were on the captured

Byrns or in and on the drugstore. Nothing was left

for transportation in a ear.

One last argument on this point involves the ready

availability of judicial officers for application for a

search warrant in this instance. The city judge of

Smiths Grove lives only a few blocks from the scene

20

of the crime (T.E. 125-6). And a magistrate of War-

ren County lives about a mile outside the community.

The chief of police would have had no difficulty locat-

ing either (T.E. 126).

Johnson v. United States, 333 U. 8. 10 at 13-14, 92

L. Ed. 436 at 440 (1948), Justice Jackson for the ma-

jority, noted:

‘The point of the Fourth Amendment, which often

is not grasped by zealous officers, is not that it

denies law enforcement the support of the usual

inferences which reasonable men draw from evi-

dence. Its pretection consists in requiring that

those inferences be drawn by a neutral and de-

tached magistrate instead of being judged by the

officer engaged in the often competitive enterprise

of ferreting out crime. Any assumption that evi-

dence sufficient to support a magistrate’s disin-

terested determination to issue a search warrant

will justify the officers in making a search with-

out a warrant would reduce the Amendment to a

nullity and leave the people’s homes secure only in

the discretion of police officers.’’

III. The Admission Into Evidence of Exhibits and Testi-

mony Regarding Photographs Which Were Not Shown

to Appellant’s Counsel Until the Midst of the Trial

Presents a Substantial Constitutional Question Con-

cerning a Criminal Defendant’s Fourteenth Amend-

ment Due Process Right to a Fair Trial.

The Commonwealth’s case was based solely on cir-

cumstantial evidence. A circumstantial case is built

and sustained through accumulation of circumstances.

Defense against such a case consists primarily of a re-

21

sponse to each circumstance so as to disprove the as-

sociation of one to another and, at least, weaken the

cumulative effect of the sum of the circumstantial evi-

dence. Pursuant to the Cireuit Court’s order (Ct.

Trans. 13), entered in response to appellant’s motion

for discovery (Ct. Trans. 7-8) and the Commonwealth’s

reply (Ct. Trans. 12), counsel for appellant met with

the sheriff’s deputy in charge of the case and inspected

all exhibits and real evidence sewn to him (T.E. 122-

123).

The second day of the trial, as court was about to

convene, Defense counsel for the first time was shown

a key. This key was introduced in evidence about an

hour later and identified as having been found in the

search of the person of co-defendant Byrns. That key,

according to the deputy, fit the ignition to the car Vit-

titow was driving (T.E. 122-4, 166). Appellant had

no opportunity to examine or test the key, to consider

it, or prepare any response to its introduction more

than midway through the trial. Appellant objected

and moved to exclude the key from evidence (T.E.

124).

James Vv. Commonwealth, Ky., 482 8. W. 2d 92, 94

(1972), held that a cat and mouse game whereby the

Commonwealth is permitted to withhold important in-

formation requested by the accused cannot be counte-

nanced. And this is the case at bar.

In reply to discovery motions of the appellant pur-

suant to RCr 7.24 and Brady v. Maryland, 373 U. 8S.

83 (1963), the Commonwealth Attorney stated: ‘* Any

photographs, exhibits, maps, or diagrams in the pos-

22

session of the Commonwealth will be used in the trial

and entered into evidence’’ (Ct. Trans. 12) The Com-

monwealth agreed to inspection by appellant of all

such evidence and asserted that it had none it was hid-

ing (Id.).

Photographs of boot prints and the boots worn by

Vittitow at the time of his arrest were introduced by

the Commonwealth into evidence. The boot prints in

the photos were clearly and distinctly not those of

Vittitow (T.E. 646; 73; 187).

Throughout the trial, until appellant pointed out

the clear distinction between the prints and boots, the

Comonwealth took great pains to show that the prints

found on the ground appeared at the location of the

burglar’s jump, that the prints had been carefully pre-

served, and the photos were taken of the spot ‘‘where

the subject was supposed to have jumped off the store

roof (T.E. 65-6; 97-8; 110-4). But, Major Woods, last

witness for the Commonwealth, and the one who pro-

duced the key from Byrns, added a new element to

the boot print circumstance. When asked if the pho-

tographic exhibits represented the way the prints

looked at the crime scene, he stated: ‘Not all of them.

They didn’t turn out. We was unable to get them”’

(T.E. 161).

These unclear photos were never shown to appel-

lant or the jury. He was never advised of the exist-

ence of other prints or photos or photographie at-

tempts. He was advised by the photographer, Al

Burnett, a well-qualified man with twenty-one years

experience in scientific law enforcement investigation

a

23

(T.E. 67) that the photos he produced were those of

the ones he saw (T.E. 64-6). And the prints did not

match the boots. (Emphasis ours.) ‘Thus, Vittitow’s

comparison of the soles of his boots with the photos

proved that he was not the one who made the impres-

sion in the ground where the burglars escaped.

The deputy sheriff’s vague qualification of the tes-

timony of all preceding witnesses through references

to photos of ‘‘other boot prints that didn’t turn out”’

did effectively weaken the disproof of Vittitow’s part

in making the prints. And appellant had no oppor-

tunity to know of or examine these unclear photos.

While the deputy sheriff did not categorically as-

sert that the unclear boot prints matched Vittitow’s

boots, Vittitow had established that those shown did

not, and the belated references to ‘‘similarity’’ cireum-

vented the evidence and deprived the appellant of a

crucial part of his defense. The game played by the

Commonwealth was manifestly unfair to the appellant,

and the Court should notice this substantial error upon

a critical issue at trial. RCr 9.26.

CONCLUSION

The conviction of Raymond Vittitow of grand lar-

ceny was based solely on evidence of his ‘‘presence”’

in the community where the burglary occurred and

strictly on unspecified association with Byrns, the cap-

tured suspect on the night of the crime. While there

may be inferred that circumstances surrounding his

arrest were unusual, there was no evidence, circum-