State v. Williams ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. WILLIAMS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
TOMMIE L. WILLIAMS, APPELLANT.
Filed August 4, 2020. No. A-19-664.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Timothy S. Noerrlinger for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
PIRTLE, RIEDMANN, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Tommie L. Williams appeals from his conviction for possession of methamphetamine
following a jury trial in the district court for Lancaster County. He challenges the court’s order
overruling his motion to suppress and asserts that his trial counsel rendered ineffective assistance.
For the reasons that follow, we affirm the decision of the district court.
BACKGROUND
On August 16, 2018, the State charged Williams with three counts arising from an incident
that occurred on or about July 21, 2018:
(1) Deliver or with intent to deliver a controlled substance, methamphetamine, a
Class II felony, in violation of Neb. Rev. Stat. § 28-416(1)(2)(A) (Reissue 2016);
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(2) Possess firearm by a prohibited person, a Class ID felony, in violation of Neb.
Rev. Stat. § 28-1206(1)(3)(B) (Reissue 2016); and
(3) Possess machine gun, short rifle, or shotgun, a Class IV felony, in violation of
Neb. Rev. Stat. § 28-1203 (Reissue 2016).
In an affidavit for a search warrant that was later received by the court as an exhibit, Lincoln
Police Officer Trevor Schmidt described the events that took place on July 21, 2018. Schmidt
stated that he observed two people riding their bicycles in the alley behind 1516 North 27th Street,
an address known to be associated with the use and sale of methamphetamine. Schmidt observed
the bicyclists violating traffic laws and conducted a traffic stop, during which one of the bicyclists
was identified as Eric Bulkowski. Bulkowski consented to a search of his person, and Schmidt
identified a pipe used for smoking methamphetamine in Bulkowski’s front left pants pocket.
Bulkowski admitted that it was a meth pipe, and a subsequent analysis of a swab of the pipe
identified the presence of methamphetamine. Bulkowski was arrested and transported to jail where
he waived his Miranda rights and continued speaking with Schmidt.
Schmidt stated in the affidavit for a search warrant that Bulkowski told him that he waited
at 1516 North 27th Street for approximately “20 minutes for ‘Tim’ to arrive for the purpose of
purchasing methamphetamine.” Bulkowski described “Tim” as a thin, bald-headed, black male,
who was approximately 40 to 50 years old. Bulkowski purchased 0.2 grams worth of
methamphetamine for $20 from “Tim,” which amounted to “one chunk.” He said that he had been
purchasing 0.2 grams of methamphetamine from “Tim” at least once per day for approximately a
month. Bulkowski melted the methamphetamine in his glass pipe and then left the residence.
Bulkowski said that he saw approximately one-eighth of an ounce of methamphetamine in
a bag in the small coin pocket of “Tim’s” pants on July 21, 2018. He said that he knew from
previous meetings that “Tim” stored additional methamphetamine in a diabetic test strip container
that usually sat in the open. Bulkowski also said that during his visits to purchase
methamphetamine during the month, he had seen “Tim” possess many knives and two handguns,
including one that was “an old western six shooter” that was approximately 12 inches long and
one that was much smaller. Bulkowski said that he knew both the front and back doors to “Tim’s”
apartment were barricaded with steel beams.
Schmidt’s affidavit states that he then consulted his Department’s records management
system and learned that Williams, a 53-year-old black male, lived in apartment No. 1 at 1516 North
27th Street. Schmidt stated in his affidavit that Department records, which were based on prior
encounters with Williams, showed that he was known to be a source of methamphetamine, known
to possess knives and firearms, and known to barricade his front and back doors with steel beams.
Based on the information contained in the affidavit, which was obtained from interviewing
Bulkowski and reviewing Department records, Schmidt applied for the issuance of a search
warrant for “1516 N. 27th St. #1.” Schmidt stated that apartment No. 1 was on the main floor and
had both front and back entrances. He outlined numerous items to be seized, including
methamphetamine, drug paraphernalia, documentary evidence of the distribution of controlled
substances, cell phones, and any proceeds attributable to the sale of controlled substances. Schmidt
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sought the issuance of a no-knock warrant to be executed with support from the Lincoln Police
Department Swat Team.
On July 21, 2018, the county court for Lancaster County issued a search warrant in
accordance with Schmidt’s request. Schmidt executed the warrant of Williams’ residence on the
same day and inventoried the property seized. The evidence seized included a large mirror with
methamphetamine residue, a diabetic test strip bottle with methamphetamine, scales, a marijuana
pipe, a meth bong, a revolver, a shotgun, and ammunition.
On January 28, 2019, Williams filed a motion to suppress the evidence that was seized
pursuant to the search warrant executed on July 21, 2018. Williams alleged that the facts provided
were insufficient for the court to issue a search warrant, that Schmidt’s affidavit and application
for a search warrant did not provide probable cause for the issuance of a search warrant, that the
scope of the search exceeded the scope authorized by the warrant, and that the search and seizure
were unreasonable, unlawful, and violated Williams’ constitutional protections.
The court held a hearing on Williams’ motion to suppress on February 1, 2019. The State
called Schmidt, and the court received as exhibit 1 Schmidt’s affidavit for a search warrant, the
search warrant itself, the search warrant return, and the inventory and receipt of seized property.
Williams offered no evidence.
Schmidt testified at the suppression hearing that he completed the affidavit for a search
warrant of Williams’ residence after speaking with Bulkowski, who had purchased
methamphetamine from Williams. Schmidt said that he did not “recall how in-depth” they looked
into Bulkowski’s background but that many of his statements were corroborated by reviewing
Department records from prior contacts with Williams. Schmidt testified that Williams matched
the physical description that Bulkowski provided of the man from whom he bought
methamphetamine that day. He acknowledged, however, that Bulkowski referred to Williams as
“Tim” even though his first name is Tommie. Schmidt testified that he believed Bulkowski
responded to his questions truthfully because he was speaking against his own penal interests and
because their records confirmed many of the details he provided. Records that identified Williams
as possessing firearms and selling methamphetamine from that address were made within the year
before Schmidt accessed them. Additionally, Schmidt said that he presented a photo of Williams
that did not display his name or any other identifying information, and Bulkowski confirmed that
the man in the photo was the man he knew as “Tim.”
Schmidt described Williams’ residence as being apartment No. 1 in a house that was
divided into three apartments. Although Schmidt testified that he did not recall whether Bulkowski
ever specifically identified “apartment number one,” he said that Bulkowski described Williams’
apartment sufficiently for it to be identified as apartment No. 1 in conjunction with existing
Department reports. Schmidt said that he did not recall a “Tim” being listed as a resident of any of
the other apartments according to the Department records. On cross-examination, Schmidt
acknowledged that it was possible that other apartments in the house could have been the one to
which Bulkowski referred.
After the court granted a search warrant for Williams’ residence, Schmidt said that he and
another officer first took Williams into custody before they knocked on his door. A woman
removed the barricades from inside the residence, and Schmidt and other officers executed the
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search warrant around 6:30 p.m. on July 21, 2018, leaving a copy of the warrant. They observed
methamphetamine in plain sight almost immediately upon entry.
Two guns were seized from Williams’ residence: a shotgun cut down to a length of
approximately 13 inches and “an old school or very old style revolver,” according to Schmidt.
Schmidt testified that the revolver they seized seemed to conform with Bulkowski’s description
while the sawed-off shotgun did not. Schmidt acknowledged that Bulkowski told them that the
firearms were in Williams’ bedroom, but they were actually found in the bathroom ceiling tiles.
Schmidt also acknowledged on cross-examination that he “made an error” and “forgot to add the
part about the weapons” to his application for a search warrant.
On March 19, 2019, the court overruled Williams’ motion to suppress. In ruling from the
bench, the court noted that a citizen informant who personally observed the commission of a crime
is presumptively reliable and that probable cause is evaluated by the collective information known
by investigators, including information obtained from an informant. The court found that the
search warrant contained sufficient facts demonstrating Bulkowski’s knowledge of Williams’
criminal activity and referred to Bulkowski as a citizen informant whose information was
subsequently established by independent investigation. The court further found that it was
reasonable for officers to search places, including the ceiling tiles, where controlled substances
and related items could be found and that such a search led to the discovery of firearms as well.
Also on March 19, 2019, the State filed a motion for leave to amend the information filed
against Williams. The court held a hearing on that motion on March 25. The State informed the
court that it had made a plea offer to Williams whereby he would plead guilty or no contest to the
first and third counts of the original information in exchange for the State dismissing the second
count and not pursuing a habitual criminal enhancement. Williams declined that offer. The State
told the court that it therefore wished to amend the information to add the habitual criminal
allegation. The court sustained the State’s motion for leave to amend the information, which
amended information the State filed on March 25. At the same hearing on March 25, the court
advised Williams of his right to be arraigned at least 24 hours after being served with a copy of
the amended information. He waived that right, and the court arraigned him on the amended
information. Williams entered not guilty pleas to the charges outlined in the amended information.
A jury trial was held on May 6, 7, and 8, 2019. The State called Bulkowski, Schmidt, and
six other law enforcement officers. It also admitted numerous exhibits, including stipulations made
jointly with Williams. Williams did not testify and offered no other evidence. The jury
subsequently found Williams guilty of the lesser-included offense to count one, that being simple
possession of methamphetamine, and not guilty of counts two and three which related to the
possession of firearms. We will only recount trial evidence as related to the arguments raised by
Williams in this appeal.
Bulkowski testified that Schmidt stopped him on July 21, 2018, while he was bicycling
and that he consented to a pat-down of his person, which revealed a pipe containing
methamphetamine. He said that he did not tell Schmidt that he purchased methamphetamine from
a man named “Tim,” but he admitted that he told Schmidt he made the purchase inside the
residence located at 1516 North 27th Street. Bulkowski identified Williams in the courtroom as
the man who sold him methamphetamine on that date at that residence. He said that he had known
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Williams for “a couple of months” prior to July 21, 2018, but did not learn his name “until just
recently.” Bulkowski identified Williams as his “dealer” who sold him methamphetamine “[a]
good handful of times.” Bulkowski further stated that he had entered into a plea agreement wherein
he was being allowed to plead guilty to a reduced charge of attempted possession of
methamphetamine in exchange for his testimony in the case filed against Williams.
Bulkowski was asked about Williams’ firearms, and he testified that he had seen Williams
have “a little, tiny gun” when they met for the first time but had not seen firearms since then. On
cross-examination, Bulkowski was asked whether he was under the influence of
methamphetamine, other pills or drugs, or alcohol when he spoke with Schmidt, each of which he
denied. However, he said that he had a “slight memory problem” due to “severe concussions.”
Bulkowski said that his memory problems primarily consisted of names but that he remembers
faces and places.
At trial, Schmidt testified to the same basic facts that he had recounted during the
suppression hearing. During Schmidt’s testimony, Williams objected, stating, “I’d like to renew
my objection to the search warrant based on hearsay, and I’d like that to be a continuing objection
throughout the rest of his testimony.” The court inquired, “So that objection goes to the search
warrant and to the application of the search warrant?” Counsel for Williams answered
affirmatively, and the court overruled that objection and recognized a continuing objection. Later,
following a discussion of whether the objection carried over to other officers’ testimony, the court
asked, “[Y]ou are objecting to the warrant in and of itself?” Counsel for Williams again answered
affirmatively. The court said, “I will show a continuing objection to the validity of the warrant and
overrule the objection.”
The parties stipulated that residue found on a mirror in Williams’ residence was
methamphetamine. They also stipulated that a diabetic test strip container found in Williams’
residence contained 1.29 grams of methamphetamine.
On May 8, 2019, the jury returned verdicts finding Williams guilty of possession of
methamphetamine. Sentencing was held after the court had a presentence investigation report
completed and conducted an enhancement hearing, during which the court found Williams to be a
habitual criminal. On June 24, the court sentenced Williams to no less than 10 years’ imprisonment
and no more than 10 years’ imprisonment.
Williams now appeals.
ASSIGNMENTS OF ERROR
Williams assigns that the district court erred in overruling his motion to suppress and
argues that he was denied effective assistance of trial counsel by his counsel’s failures to depose
specific witnesses, to file a motion pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674,
57 L. Ed. 2d 667 (1978), and to file a motion for new trial.
STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Jennings,
305 Neb. 809, 942 N.W.2d 753 (2020). Regarding historical facts, an appellate court reviews the
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trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s
determination. State v. Jennings, supra. When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers all the evidence, both from trial and
from the hearings on the motion to suppress. Id.
A claim that defense counsel provided ineffective assistance presents a mixed question of
law and fact. State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019). When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court
for clear error. Id. With regard to questions of counsel’s performance or prejudice to the defendant
as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently
of the lower court’s conclusion. State v. Beehn, supra.
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.
ANALYSIS
Motion to Suppress.
The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”
and further provides that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.” The Nebraska Constitution provides similar protections. See Neb. Const. art. I, § 7. The
execution of a search warrant without probable cause is unreasonable and violates these
constitutional guarantees. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010). Accordingly, a
search warrant, to be valid, must be supported by an affidavit which establishes probable cause.
Id. Probable cause sufficient to justify issuance of a search warrant means a fair probability that
contraband or evidence of a crime will be found. Id. Proof of probable cause justifying issuance of
a search warrant generally must consist of facts so closely related to the time of issuance of the
warrant as to justify a finding of probable cause at the time. Id.
In reviewing the strength of an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a totality of the circumstances test. State v.
Benson, 305 Neb. 949, 943 N.W.2d 426 (2020). The question is whether, under the totality of the
circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding
that the affidavit established probable cause. Id. Probable cause sufficient to justify issuance of a
search warrant means a fair probability that contraband or evidence of a crime will be found. Id.
In evaluating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is
restricted to consideration of the information and circumstances contained within the four corners
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of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether
the warrant was validly issued. Id.
Williams argues that the district court erroneously denied his motion to suppress. The gist
of his argument is that the affidavit does not articulate a firm basis for a search of his particular
apartment which was one of three located at 1516 North 27th Street. The State first argues in reply
that because Williams only objected at trial to the search warrant on the basis of hearsay, the
warrant’s reliance on hearsay statements is the only issue preserved for our review on appeal. The
State then also argues that the warrant was based on sufficient probable cause as outlined by
Schmidt’s affidavit in support thereof.
We first address Williams’ trial objection. A failure to object to evidence at trial, even
though the evidence was the subject of a previous motion to suppress, waives the objection, and
that party will not be heard to complain of the alleged error on appeal. State v. Tharp, 22 Neb.
App. 454, 854 N.W.2d 651 (2014). On appeal, a defendant may not assert a different ground for
his objection to the admission of evidence than was offered at trial. State v. Huerta, 26 Neb. Ct. App.
170, 917 N.W.2d 175 (2018). At trial, Williams objected to the search warrant based on hearsay,
which objection the court overruled and recognized as a continuing objection. However, shortly
thereafter, the court also asked Williams whether he was “objecting to the warrant in and of itself,”
which Williams confirmed. (Emphasis supplied.) We therefore conclude that Williams’ trial
objection was not confined to the issue of hearsay evidence, and we now turn to evaluate his
arguments related to probable cause.
Schmidt prepared an affidavit for a search warrant after apprehending and interviewing
Bulkowski, who told Schmidt that he had purchased methamphetamine from a man named “Tim”
inside 1516 North 27th Street. Schmidt had previously seen Bulkowski riding a bicycle behind
that residence. A pipe was found on Bulkowski which field-tested positive for the presence of
amphetamine. Schmidt’s affidavit further reflects that Bulkowski identified the seller as a thin,
bald-headed, black male, approximately 40 to 50 years old. Bulkowski said that the seller stored
methamphetamine in a diabetic testing container and possessed numerous firearms and knives.
Bulkowski also identified that both the front and back doors to the apartment where he purchased
methamphetamine were barricaded with steel beams.
The affidavit then recites that Schmidt utilized police records to determine who lived in the
building. He found that a black male named Tommie Williams, born in 1964, lived in apartment
No. 1 of 1516 North 27th Street. According to police records, Williams had a documented record
of being a source of methamphetamine and possessing knives and firearms. A prior report to police
also stated that Williams barricaded both the front and back door of the apartment with steel beams.
Williams takes issue on appeal with Bulkowski erroneously identifying him as “Tim,”
when his first name is actually Tommie, and failing to name his apartment number at 1516 North
27th Street. There is no question, however, that Schmidt’s affidavit not only contained information
which provided a basis to believe the specific apartment where the transaction took place was
apartment No. 1, but also linked Williams to that apartment. Moreover, Bulkowski’s admissions
to Schmidt were statements against penal interest and were corroborated by independent
investigation by the police. We conclude, under the totality of the circumstances illustrated by the
affidavit, that the affidavit established a fair probability that contraband or evidence of a crime
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would be found in Williams’ residence. Accordingly, we find no error in the court’s order
overruling Williams’ motion to suppress.
Ineffective Assistance of Counsel.
To prevail on a claim based on counsel’s ineffective assistance, the defendant has the
burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), to show that counsel’s performance was deficient; that is, counsel’s performance did
not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Lopez,
274 Neb. 756, 743 N.W.2d 351 (2008). In determining whether a trial counsel’s performance was
deficient, there is a strong presumption that counsel acted reasonably. State v. Miner, 273 Neb.
837, 733 N.W.2d 891 (2007).
Next, the defendant must show that counsel’s deficient performance prejudiced the defense
in his or her case. State v. Lopez, supra. In order to show prejudice, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient performance, the result of the proceeding
would have been different. Id.
Williams alleges three ways in which his trial counsel rendered ineffective assistance. First,
Williams argues that his trial counsel was ineffective because he failed to depose material
witnesses before trial. In particular, Williams argues that had his trial counsel deposed Schmidt,
he would have learned that Bulkowski “was under the influence of a controlled substance . . . on
July 21, 2018.” Brief for appellant at 15. He then argues that had trial counsel taken the deposition
of Bulkowski, he would have learned that Bulkowski did not recall (1) naming the person he
bought methamphetamine from, (2) having an extended conversation with that person that day,
and (3) having seen a gun on July 21.
We first note that our record does not reveal what information was in trial counsel’s
possession by way of discovery or counsel’s own investigation. But even if the foregoing items
were not revealed until testified to at the suppression hearing or trial, trial counsel’s failure to
depose the witnesses would not constitute ineffective assistance. Bulkowski testified on
cross-examination at trial that he was not in fact under the influence of alcohol, methamphetamine,
or any other pills or drugs at the time he was stopped by Schmidt on July 21. Moreover, Schmidt’s
affidavit makes no reference to Bulkowski being under the influence of any controlled substances,
but notes instead that the methamphetamine Bulkowski purchased from Williams earlier that day
remained in the pipe that was found in his pocket at the time of his arrest. Schmidt’s affidavit also
does not allege that Bulkowski had an extended conversation with Williams or observed firearms
in Williams’ residence on July 21. Instead, the affidavit notes that Bulkowski had observed
firearms during the course of his daily methamphetamine purchases from Williams during the
preceding month. Finally, the focus of the affidavit for a search warrant was to demonstrate that
controlled substances might be found in apartment No. 1. There was no request for the arrest or
search of Williams. Therefore, the name of the seller was not a prerequisite to providing probable
cause for the search. Because taking depositions would not have yielded the evidence that Williams
claims or led to a different result of the proceeding, we cannot find that his trial counsel performed
deficiently in this respect.
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Next, Williams argues that his trial counsel rendered ineffective assistance by failing to file
a motion pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
The U.S. Supreme Court held in Franks:
[W]here a defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request. In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the evidence, and, with the
affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be voided and the fruits of the search
excluded to the same extent as if probable cause was lacking on the face of the affidavit.
438 U.S. at 155-56. Williams alleges that Schmidt omitted from his affidavit information that
Bulkowski was under the influence of methamphetamine when they spoke on July 21, 2018, and
information that Bulkowski had memory problems due to a history of concussions. He also
contends that the affidavit did not make clear the source of the information that Williams lived in
apartment No. 1 at 1516 North 27th Street. Finally, he contends that Schmidt provided untrue
information in the affidavit by identifying the seller as “Tim.”
Williams’ arguments in his brief on appeal fail to identify any false statements that were
included in the affidavit Schmidt filed nor do the alleged omissions constitute a willful disregard
of the truth. While Bulkowski did not recall referring to the seller as Tim, he admitted that his
recall of names was not good. Moreover, as we have explained earlier, the search warrant was for
a place not a person.
There is no evidence that Bulkowski was under the influence of methamphetamine when
he spoke with Schmidt on July 21, 2018. Schmidt did testify that Bulkowski reported having
recently used, but did not testify that he was under the influence at the time he was interviewed.
Bulkowski testified at trial that he was not under the influence of controlled substances when they
spoke. Recent use is not synonymous with being under the influence. Moreover, there is no
evidence in our record that Bulkowski’s memory issues were known to Schmidt at the time that
he drafted and filed his affidavit, and Bulkowski testified at trial regarding his history of
concussions, which he said caused a “slight memory problem” that affected only his ability to
remember names but not faces or places. Finally, the affidavit makes clear that Schmidt compared
the information provided by Bulkowski, including his physical description of the residence and
the steel beams used to blockade the front and back doors, with Department records that identified
Williams as matching the physical description and that identified Williams’ residence as being
1516 North 27th Street apartment No. 1 as being a known source of methamphetamine whose front
and back doors were blockaded with steel beams. While Williams questions the sources of
information that were located in the Lincoln Police Department Records Management System, he
does not allege that Schmidt fabricated any of the recitations he made therefrom, nor does he allege
that the information provided therefrom is either untrue or so untrustworthy as to constitute a
willful disregard of the truth. Williams fails to make any showing that the affidavit Schmidt filed
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contained any false statements, which could give rise to a challenge under Franks v. Delaware,
438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We therefore find that Williams’ trial
counsel did not perform deficiently by failing to file a Franks motion in this matter.
Finally, Williams argues that his trial counsel was ineffective because he failed to file a
motion for new trial based on “a mistake of law based on the testimony of Officer Schmidt and
Bulkowski at trial.” Brief for appellant at 18. Williams again cites many of the claims he raised
above: Bulkowski being under the influence of methamphetamine when he spoke to Schmidt on
July 21, 2018; Bulkowski suffering memory problems; Bulkowski having not observed firearms
inside Williams’ residence on July 21; Bulkowski not knowing Williams’ true name; and
Bulkowski not knowing Williams’ specific apartment number. We have already evaluated each of
these claims in turn. Williams was not prejudiced by his trial counsel’s failure to file a motion for
new trial based on the above claims because such a motion would not have been successful.
Therefore, we conclude that Bulkowski’s trial counsel did not render ineffective assistance.
CONCLUSION
Based on the foregoing, we affirm the order of the district court overruling Williams’
motion to suppress and find that he was not provided ineffective assistance of trial counsel.
AFFIRMED.
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