Hill v. State

• Decision Date: 19 November 2019
• Docket Number: Court of Appeals Case No. 19A-CR-16
• Citation: 137 N.E.3d 926
• Parties: James HILL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

137 N.E.3d 926

James HILL, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-16

Court of Appeals of Indiana.

Filed November 19, 2019
Publication Ordered December 11, 2019

137 N.E.3d 930

Case Summary

1] James Hill appeals his conviction and sentence for murder in perpetration of robbery based on several alleged procedural and sentencing errors. We affirm in part, reverse in part, and remand for resentencing.

Issues

[2] Hill raises several issues for our review:

I. Whether the admission of a deceased witness' deposition violated Hill's federal and state constitutional rights.

II. Whether the trial court erred in excluding Hill's proffered evidence and denying Hill's request for an offer of proof.

III. Whether the trial court erred in denying Hill's motion for mistrial.

IV. Whether the State improperly solicited opinion evidence regarding Hill's guilt.

V. Whether the cumulative effect of the alleged errors violated Hill's federal and state constitutional rights.

VI. Whether Hill was properly sentenced.

Facts

[3] The pre-trial facts, as stated in Hill's interlocutory appeal, follow:

In the early morning of November 14, 1980, Hammond Police Officer Larry Pucalik was murdered during an attempted robbery at the Holiday Inn-Southeast located in Hammond, Indiana. Later that day, Hammond Police Detective Robert Seaman received an anonymous phone call from a person who stated, "Pierre Catlett killed your cop."

On November 18, 1980, police arrested Hill on an unrelated charge. When he was arrested, Hill "made the spontaneous utterance ‘I know you guys think I shot that Hammond cop.’ "

* * * * *

On June 22, 2012, the State charged Hill, [Larry] Mayes, and Catlett with Officer Pucalik's murder.^{[1 ]} On March 27, 2014, the charge against Hill was dismissed.

* * * * *

On September 1, 2016, the State again [charged] Hill [ ] [with] murder, murder in perpetration of robbery, and Class A felony attempted robbery.

Hill v. State, 92 N.E.3d 1105, 1107-1109 (Ind. Ct. App. 2018), trans. denied (citations omitted).

Hill filed a motion to dismiss² wherein he alleged a due process violation from the State's belated filing of charges. The trial court denied the motion to dismiss, and we affirmed on interlocutory appeal.

[4] Subsequently, Hill moved to suppress his March 9, 1981, statement to police in which he admitted that he drove the robbery getaway vehicle. At the suppression hearing on May 10, 2018, Raymond Myszak of the Hammond Police Department testified that, on March 9, 1981, Hill notified Myszak's partner—Detective Dennis Williams—that Hill wanted to speak with Williams. Hill, who was incarcerated, met with Myszak and Williams and stated: "I drove the killer car." Motion to Suppress Tr. Vol. II p. 13. When Williams asked what Hill meant, Hill responded:

[137 N.E.3d 931

"The [car] when the policeman was killed at the Holiday Inn." Id. Myszak testified that, after Hill received his Miranda advisement, Hill provided additional details of the crime to Williams and Myszak. The trial court denied Hill's motion to suppress Myszak's and Williams' ensuing report and Hill's admission.³

5] Williams died in 2017. On May 14, 2018, the State moved to: (1) declare Williams "unavailable" as defined in the Indiana Rules of Evidence; and (2) use Williams' video deposition from an unrelated federal civil case at Hill's murder trial. Hill's counsel responded as follows:

In October[ ] 2010 the defendant (HILL) initiated a civil rights suit in federal court against the City of Hammond and several individual[s including] present and/or former Hammond Police Officers not including Dennis Williams, one of the lead detectives in the instant case. The suit was premised upon HILL's allegation of a wrongful conviction for the offenses of rape, unlawful deviate conduct and robbery. During the pendency of that civil case, on June 22, 2012, HILL was charged with the offense alleged in this matter in cause 45G01-1206-MR-00006 which was later dismissed by the State on March 27, 2014.

Appellant's App. Vol. III p. 52. At a motion in limine hearing on May 17, 2018, the trial court found Williams was unavailable and determined that: (1) the parties and interests of the parties were similar to those in the instant case; (2) Williams was under oath during his deposition; and (3) Hill's attorney conducted "significant cross-examination" during the deposition regarding Hill's murder charge. Motion in Limine Tr. Vol. II p. 26. The trial court also deemed any issue stemming from Hill's absence from the deposition to be waived by Hill's attorney's failure to object during the deposition.

[6] Hill's jury trial was held from August 27 through 31, 2018. At the outset, the trial court heard argument on the State's motion to quash the subpoena of Thomas Vanes, one of Hill's proffered witnesses. Vanes served as a prosecuting attorney, prosecuted Hill in other charges, and was aware of the murder investigation. The trial court took the State's motion to quash under advisement and deferred its ruling until the issue arose at trial.

[7] The State called several witnesses who testified regarding the events of November 14, 1980, when Officer Pucalik was killed. Donald Smulsk of the Highland Police Department testified that he responded to the murder scene and learned from a witness that two black males were involved in the shooting and that they "fled the scene in an older model blue Chevy." Tr. Vol. IV p. 55.

[8] Keith Foor, who worked at the Lake County Sheriff's Department's crime lab in 1980, testified that he arrived at the Holiday Inn at 3:54 a.m. and observed a blue denim drawstring bag on top of the cash register. Later in the trial, three witnesses testified that they each observed Hill with the same blue bag at different times and places.⁴ Investigator Ronald Gennarelli of the City of Hammond Police Department testified that he noticed a scrape mark on the curb and a hubcap by the Holiday Inn's entrance and delivered the hubcap to the crime lab the day following the incident.

[137 N.E.3d 932

[9] Officer Monte Miller from the Hammond Police Department testified that, after the robbery, he saw a car that matched the description of the getaway vehicle at a nearby apartment complex; the ignition was "popped," which can indicate that a vehicle is stolen. Tr. Vol. IV p. 137. When Mike Reilly of the Lake County Police Department processed the 1973 blue Chevrolet Impala, he noticed the vehicle's missing hubcap. Foor later determined that the hubcap from the Holiday Inn was a likely match for the blue Impala.

10] In the early morning hours on November 14, 1980, while searching the vehicle, an officer found a piece of paper under the passenger seat. Miller testified: "When [the officer] pulled [the paper] out, he had noticed that it was a note from a person that apparently had been kidnapped and left a note in the back seat." Id. at 139. Hill objected and moved for a mistrial on the grounds that the reference to a kidnapping violated a motion in limine order. The trial court denied Hill's motion for mistrial; however, the trial court gave the jury the following limiting instruction regarding Miller's statement about a kidnapping:

So jury, the last comment by the witness was something that I'm going to ask you to strike and ignore and it should not come into any consideration. It's not part of this case as it's a matter that is immaterial to what we're dealing with here. You are to not consider the last comment by the witness as you move forward with your discussions about this case. You may continue.

Tr. Vol. IV p. 142.⁵ Miller also testified that the vehicle's glove box was forced open. Officers inventoried items from the vehicle, including decorative pillows.

[11] The State also called T.W.,⁶ who met Hill two days prior to the shooting. T.W. testified as follows: on November 12, 1980, T.W. and a friend hitchhiked from Marion, Illinois, to T.W.'s mother's house in Lake County, Indiana. T.W. and her friend climbed into a blue Impala with Hill and another man. During the night, the blue Impala got a flat tire; Hill told the passengers he would borrow his cousin's car and soon returned with another blue Impala. The passengers got into the second blue Impala, which T.W. recalled had decorative pillows in the back of the vehicle. T.W. did not have a driver's license and carried a piece of paper bearing her identifying information. While T.W. was in the second blue Impala, T.W. put the paper under the front passenger seat. T.W. was subsequently dropped off near her mother's house.

[12] Michael Solan, Jr., of the 1980 Hammond Police Department, testified that three people were involved in the robbery; and that the case was reopened in 2009 after a confidential informant provided new information. Next, Myszak testified as follows regarding his investigation: in 1981, Hill implicated Catlett and Mayes and admitted his own involvement. Hill told Myszak and Williams that he drove Mayes and Catlett to the Holiday Inn; that Mayes and Catlett went into the Holiday Inn while Hill waited outside; and that Hill drove the robbery getaway vehicle. Hill also told Myszak that he believed the vehicle "struck something" as he drove away from the Holiday Inn. Id. at 14.

[13] During the jury trial and outside the presence of the jury, Hill renewed his motion to exclude Williams' deposition and

[137 N.E.3d 933

placed his objection on the record. Portions of the...