Opinion
Docket No. 226, 1998.
June 14, 1999.
Appeal from Superior Court, New Castle County, CrA IN96-08-0658, IN96-08-0660, IN96-08-0661 and IN96-09-0038-IN96-09-0044.
AFFIRMED.
Unpublished Opinion is below.
KEVIN L. HILL, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 226, 1998. Supreme Court of Delaware. Submitted: May 4, 1999. Decided: June 14, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, § Cr.A. Nos. IN96-08-0658, §§ IN96-08-0660, IN96-08-0661, and IN96-09-0038 through IN96-09-0044.
Before HOLLAND, HARTNETT and BERGER, Justices.
ORDER
This 14th day of June 1999, it appears to the Court that:
1) The defendant-appellant, Kevin Hill ("Hill"), was charged with two counts of Murder in the First Degree, six counts of Possession of a Firearm During the Commission of a Felony, one count of Robbery in the First Degree, and one count of Conspiracy in the Second Degree. He was indicted on September 3, 1996 along with five other co-defendants in connection with the armed robbery of The Great Wall Chinese Restaurant ("The Great Wall") on North Market Street in Wilmington and the murder of one of The Great Wall employees, Xiong Zheng. The jury found Hill guilty of all charges. On May 8, 1998, Hill was sentenced to two life sentences plus thirty years, followed by two years of probation.
2) Hill has raised five issues on appeal. First, Hill asserts that the Superior Court erred in denying a Motion to Suppress his statements to the police and items seized as a result of those statements. Second, Hill contends that the Superior Court abused its discretion by permitting the State to present evidence that the Wilmington Police discovered .45 caliber ammunition during a search of Hill's bedroom. Third, Hill alleges that the Superior Court committed plain error when it admitted tape recorded statements which contained repeated references to the interrogating officer's lack of belief as to the veracity of Hill and a co-defendant. Finally, Hill claims that his Sixth Amendment right to offer favorable testimony in his defense was denied when the Superior Court excluded the testimony of a co-defendant's attorney. 3) At approximately 10:15 p.m. on July 13, 1996, a homicide occurred at The Great Wall. Witnesses indicated that three or four black males in their twenties or thirties, of medium build and complexion, some wearing bandanas, armed with handguns were seen fleeing the scene on bicycles shortly after the shooting. This information was distributed in a general broadcast to officers of the Wilmington Police Department. Detective Donald Bowman ("Detective Bowman") of the Wilmington Police Department was placed in charge of the investigation.
4) Upon hearing the general broadcast, Detective Liam Sullivan ("Detective Sullivan") of the Wilmington Police Department proceeded to The Great Wall and notified Detective Bowman that this robbery was similar to other robberies that had occurred in the area. Detective Sullivan advised Detective Bowman that he had received information earlier that week from a confidential informant that Hill, Maurice Cooper ("Cooper"), and Cleve Wright ("Wright") had been involved in similar "stick up" robberies in the Market Street area, including one involving another Chinese take-out restaurant. Since the general descriptions provided by the witnesses were similar to those individuals, and Detective Sullivan knew that they resided in or frequented the Riverside area of the city, he proceeded to Riverside to see if he could locate those three individuals.
5) At approximately 2:30 a.m. on July 14, 1996, Detective Sullivan observed Hill on a bicycle on Northeast Boulevard. He detained Hill outside of his home for the purpose of conducting some questioning. While Hill was detained, Detective Sullivan learned from another officer that there was a warrant outstanding for Hill's arrest on violation of probation imposed by the Family Court. Hill was taken into custody for the purpose of executing the outstanding warrant. When Hill was taken into custody, his mother, Gwendolyn Walker ("Walker"), was not informed that the Wilmington Police intended to question him about The Great Wall shooting. Consequently, she did not accompany her son to the Wilmington Police Station.
6) When Hill was brought to the Wilmington Police Station, he was immediately taken to the Detective Division, where he was to be interviewed by Detectives Bowman and Magitti. Hill was brought to the Wilmington Police Station at approximately 2:50 a.m. on July 14, 1996. His interrogation (statement number one) began at approximately 3:25 a.m. and lasted until 6:20 a.m. Hill was 15 years old at the time. This statement was videotaped.
7) Before interviewing Hill, Detective Bowman checked the defendant's criminal history and found that it was rather lengthy. Detective Bowman asked Hill if there was anyone who should be notified of his arrest. Hill indicated that his mother had been present when he was placed under arrest; however, there was no phone in their home so that Detective Bowman could call her and seek permission to conduct an interview. Detective Bowman directed Detective Sullivan to return to Walker's home to bring her to the Wilmington Police Station. According to Detective Sullivan this occurred immediately after he brought Hill to the Wilmington Police Station. Based on the time estimates given by Sullivan at the suppression hearing, Walker was brought to the Wilmington Police Station shortly after 3:00 a.m. At approximately 5:25 a.m., Hill was permitted to meet with his mother.
8) Detective Bowman orally advised Hill of his rights prior to the interrogation. Over the next three hours, Hill gave several versions of his activities on the night of July 13, 1996, but denied any involvement in The Great Wall robbery and homicide. Walker was brought into the interview room to see her son at approximately 5:25 a.m. After a brief visit, she left the interview indicating that she needed to go home, making no specific requests of the officers concerning whether or not they should continue to interview her son. The interview with Hill was terminated approximately one hour later and he was taken to Justice of the Peace Court No. 11. Hill was thereafter committed to the Ferris School. Hill was brought before the Family Court on July 15, 1996 and the Office of the Public Defender was appointed to represent him.
9) Later in the week, Walker reported to the Wilmington Police that she had been threatened at gun point on her front porch by several black males wearing bandanas. Apparently these individuals expressed a desire to enter the premises and to search Hill's room for something they alleged belonged to them. Walker denied these individuals entry into her home, but found a window of her residence open the next morning. Although she believed that she had been burglarized, she could not find anything missing from her residence.
10) Believing that this incident might relate to The Great robbery and homicide, Detective Bowman went to Walker's residence on July 18, 1996, during the early afternoon. Detective Bowman requested and received permission to search Hill's room. Walker executed a Consent to Search form. During the search of Hill's bedroom, police located some ammunition and radios which were seized. Photographs were taken of Hill's bedroom as well. No other evidence of significance was found.
11) On the morning of July 19, 1996, Detective Bowman went to the Ferris School with Walker for the purpose of conducting another interview (statement number two) of Hill concerning his possible involvement in The Great Wall robbery and homicide. Detective Bowman testified that he did not utilize a Miranda waiver form prior to statement number two; however, he states that he informed Hill of his Miranda rights in the same way that he had previously, during the early morning hours of July 14, 1996. Statement number two was not video or audio taped.
12) Thereafter, Detective Bowman returned to the Wilmington Police Station to obtain a tape recorder. Detective Bowman again interviewed Hill during the early afternoon hours of July 19, 1996 (statement number three). Prior to statement number three, Hill and his mother were permitted to review and sign a Miranda waiver form. Statement number three was audio recorded. During this interview, Hill admitted his involvement in the robbery of The Great Wall. Thereafter, Hill was arrested and charged with Murder in the First Degree.
13) Following the third interview of Hill, Detective Bowman returned to Hill's residence and searched his room in order to locate the clothes that Hill indicated he had worn the night of the shooting. Walker again executed a Consent to Search form. Detective Bowman retrieved a black sweat jacket from Hill's room during the second consensual search. During the first search of Hill's bedroom, Wilmington Police located an empty box which would hold .9 millimeter bullets. Another box containing thirty-seven .45 caliber bullets was also located.
14) The Great Wall homicide victim was shot with a .45 caliber bullet that, according to the FBI ballistics expert, was fired from a Colt. Although the murder weapon was never found by the police in this case, the trial testimony of three of Hill's co-defendants, Khalil Ameer-Bey, Rudo Pressley and Jamonn Grier, was that Hill either admitted being the shooter or said he was not sure if he fired the fatal shot.
15) Hill's first argument is that the Superior Court erred in denying his Motion to Suppress. Hill moved to suppress statements made to the police on July 14 and 19, 1996, and the physical evidence (ammunition and a black sweat jacket) seized by the police during two consensual searches of Hill's bedroom on July 18 and 19, 1996. Hill argued that his two statements to the police on July 19, 1996, and the physical evidence seized on July 18 and 19, 1996, must all be suppressed as "fruit of the poisonous tree" as a result of the alleged illegality of Hill's videotaped statement to the Wilmington Police on July 14, 1996.
The Superior Court conducted a hearing on Hill's suppression motion. The Superior Court concluded that there was no illegality in Hill's July 14, 1996 videotaped statement to the police. Therefore, it held that the subsequent statements by Hill on July 19, 1996, and the two police searches of Hill's bedroom on July 18 and 19, 1996, were not "fruit of the poisonous tree." This Court has determined that the Superior Court's decision to deny Hill's Motion to Suppress should be affirmed on the basis of and for the reasons assigned by the Superior Court in its twenty-six page decision dated November 19, 1997.
16) Hill's second argument is that the Superior Court abused its discretion when it permitted the State to introduce into evidence the box of .45 caliber ammunition. The box of ammunition contained thirty-seven Remington bullets which were recovered by police during a search of Hill's bedroom on July 18, 1996. The search was consented to by Walker. According to the FBI ballistics expert, the box of ammunition contained thirty-six Remington .45 caliber auto rim cartridges and one Remington .45 caliber non-auto rim cartridge. The auto rim cartridges could only be fired from a revolver. The single regular .45 caliber Remington cartridge would fire from a semi-automatic weapon.
The Superior Court determined that the evidence was relevant. The thirty-six .45 caliber Remington auto rim cartridges were evidence that confirmed Cooper's trial testimony that Hill had obtained additional ammunition for their semi-automatic handgun before July 13, 1996, but that those bullets would not fit in that gun. The single .45 caliber Remington non-auto rim cartridge found in Hill's bedroom five days after the fatal shooting was relevant because it showed that Hill possessed ammunition similar to the fatal bullet removed from the homicide victim. It was also similar to the other .45 caliber casing found in the alleyway outside the robbery-homicide scene. The record supports the Superior Court's ruling that this physical evidence had a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
After concluding that the evidence was relevant, the Superior Court found that the probative value of the .45 caliber ammunition to the State's case outweighed any potential prejudice to Hill. The Superior Court analyzed the evidence in terms of the six part Getz analysis. The Superior Court then the jury a cautionary instruction as to the limited purpose for admission of the evidence. The record reflects that the Superior Court's decision to admit the box of .45 caliber ammunition into evidence was a proper exercise of its discretion.
17) Hill's third argument is that the Superior Court committed error when it admitted into evidence the tape recorded statements of Hill and Khalil Ameer-Bey "which contained repeated references to the interrogating officer's lack of belief as to the witnesses' veracity." Hill failed to object to these portions of the two statements at trial. Therefore, he waived appellate review of this issue in the absence of demonstrating plain error.
Hill's opening brief is conclusory and does not point to the specific statements in the record which he contends should not have been admitted into evidence. Supreme Court Rules 9(e)(ii) and 14(e) "direct all parties to order a transcript and to include in their appendix those portions of the record which are relevant to any claims on appeal." Hill has failed to demonstrate plain error in the record.
18) Hill's final argument is that the Superior Court abused its discretion by failing to admit the testimony of the attorney for Hill's co-defendant, Cooper. After jury selection in this matter, Cooper pled guilty to Murder in the Second Degree, Robbery in the First Degree and Conspiracy in the Second Degree on November 21, 1997. As part of the plea agreement, Cooper agreed to testify truthfully for the prosection.
We have relied upon Hill's Opening Brief in reciting the relevant facts.
Miranda v. Arizona, 384 U.S. 436, 475-77 (1966).
Id.
Id.
State v. Cooper, et al., Del.Supr., I.D. No. 9607013229 (Nov. 19, 1997) (Mem.Op.).
D.R.E. 401, 402.
D.R.E. 403.
Getz v. State, 538 A.2d 726, 734 (1988).
See Supr.Ct.R. 8; D.R.E. 103.
Tricoche v. State, Del.Supr., 525 A.2d 151, 154 (1987).
Cf. Holtzman v. State, Del.Supr., No. 221, 1997, 1998 WL 666722 (July 27, 1998); Wheat v. State, Del.Supr., 527 A.2d 269 (1987); Benson v. State, Del.Supr., 375 A.2d 461 (1977).
Cooper testified that he had not been truthful on July 14, 1996, when he told Detective Bowman that he was not present at The Great Wall the previous evening. Cooper told the jury that he lied because he did not want to go to jail. On cross-examination, Cooper stated that he entered the guilty pleas because he was guilty and because he did not want to go to jail for the rest of his life.
After the State rested its case, Hill wanted to call Cooper's counsel, Howard Hillis ("Hillis"), to testify about a severance motion he had filed before Cooper pled guilty. The motion contained an allegation that Cooper denied being present during the incident at The Great Wall. Hill wanted to explore the apparent alibi defense Cooper would have used had he gone to trial. Hill contends that this testimony would have impeached Cooper's testimony on cross-examination that he pled guilty because he was guilty and not because he was receiving a "good deal" from the State.
The Superior Court concluded that the proffered testimony of Hillis was inadmissible under D.R.E. 608(b), 403 and 502. The Superior Court stated that the alibi defense was intended as proof of a specific instance of conduct to attack the credibility of Cooper, and as such it was inadmissible under D.R.E. 608(b). The Superior Court also found that it was inadmissible under D.R.E. 403. The Superior Court stated that Hill was attempting to attack the credibility of Cooper through confidential statements made between Cooper and his attorney that are protected by D.R.E. 502. In announcing its ruling, the Superior Court noted that if Hill wanted to explore the alibi assertion made by Cooper, "he was free to do so under cross-examination, but may not do so now."
The Superior Court properly ruled that, under the circumstances presented, Hill could not use extrinsic evidence to impeach Cooper's credibility because the danger of jury confusion outweighed any probative value. Cooper had already testified before the jury that his initial denial of involvement in the murder was a lie. The Superior Court did not abuse its discretion when it denied Hill's request to call Cooper's attorney to testify. Hill could have asked Cooper on cross-examination whether he had intended to raise an alibi defense if he had gone to trial. He did not. The Superior Court did not violate Hill's Sixth Amendment rights.
NOW, THEREFORE, IT IS HEREBY ordered that the judgments of the Superior Court are AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland
Justice