Hilliard v. Com.

• Decision Date: 31 August 2004
• Docket Number: Record No. 0394-02-2.
• Citation: 43 Va. App. 659,601 S.E.2d 652
• Parties: Curtis Darnell HILLIARD v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

601 S.E.2d 652

43 Va. App. 659

Curtis Darnell HILLIARD v. COMMONWEALTH of Virginia.

Record No. 0394-02-2.

Court of Appeals of Virginia, Richmond.

August 31, 2004.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), Richmond, for appellant.

Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON and KELSEY, JJ.

ROBERT J. HUMPHREYS, Judge.

This matter comes before the Court on a rehearing en banc from an unpublished panel decision of January 6, 2004. See Hilliard v. Commonwealth, 04 Vap UNP 0394022, 2004 WL 26307 (2004). In that decision, a divided panel of this Court affirmed Hilliard's convictions for murder (in violation of Code § 18.2-32), use of a firearm in the commission of murder (in violation of Code § 18.2-53.1), maliciously shooting into an occupied vehicle (in violation of Code § 18.2-154), and discharging a firearm on or within 1000 feet of school property (in violation of Code § 18.2-280(B)), finding that the trial court properly denied Hilliard's motion to suppress inculpatory statements obtained from him by the police after he allegedly invoked his right to an attorney and that it did not err in giving an Allen charge to the jury during the guilt phase of the trial or in its response to questions from the jury during the sentencing phase of the trial on the presumption of consecutive sentences and the possibility of geriatric release. By order dated February 10, 2004, we granted the appellant's petition for a rehearing en banc, stayed the mandate of that decision, and reinstated the appeal. Upon rehearing this case en banc, we affirm in part and reverse in part and remand.

I. Background

In reviewing a trial court's denial of a motion to suppress, we consider the evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from the evidence. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

On July 7, 1999, the victim, Anthony Robinson, Jr., was shot and killed in Richmond, Virginia. Hilliard was indicted for Robinson's murder on September 13, 1999, and arrested on September 15, 1999. Richmond City Police Detectives White and Kochell interviewed him the next day.

At the beginning of the interview, Detective Kochell advised Hilliard of his rights under Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked him to sign a waiver form indicating he understood his rights and wished to speak to the detectives. Before signing the form, Hilliard asked the detectives, "Can I have somebody else present too, I mean just for my safety, like a lawyer, like y'all just said, or something? Can I ...?" Detective White responded, "That's up to you. Like [Detective Kochell] said, all we're doing today is just trying to get your side of the story. That's all we're trying to do." Hilliard replied, "But I'm trying to tell you, I don't have a side. I don't." Detective White then explained to Hilliard that they could not continue to speak with him unless he signed the form. Hilliard signed the waiver form, and the detectives continued the interview.

Moments later, after being asked how he knew the victim and being told by the detectives to be "honest," Hilliard stated:

I understand what both of you all are saying wholeheartedly. I need to say that ... I'm not saying that I know anything. I'm not saying that I know the person. You know what I'm saying? The only thing, ... like I said, I would like to have somebody else in here because I may say something I don't even know what I am saying, and it might fuck me up, might jam me up in some incidents, and I don't want that to happen, man.

(Emphasis added.) Detective Kochell replied, "We're not here trying to jam you up. Okay?" Kochell then explained to Hilliard that the interview was not going to be conducted in a harsh manner, like those seen on television. Hilliard then continued his conversation with the detectives.

Approximately an hour into the interview, Detective White told Hilliard he wanted to know "what happened and why" and wanted Hilliard to tell his "side of the story." The following exchange then occurred:

HILLIARD: Can I get a lawyer in here?

DETECTIVE WHITE: Do you want to do that?

HILLIARD: I already have a lawyer. I mean, I can talk to you, don't get me wrong. But I just want to make sure I don't, like I said before, just jam myself up. And I'll tell you everything that I know. This is my word.

DETECTIVE WHITE: Okay. That's fine.

DETECTIVE KOCHELL: That's fine.

HILLIARD: I'm not saying that I will say anything other or just because he's in here. I just want to, you know, make sure I have ... I'd feel a little bit more comfortable.

DETECTIVE KOCHELL: That's not a problem. We tried to provide you with a comfortable atmosphere here. And, like I said, it's not the stuff that you see on TV dealing with Sipowicz, okay, where he takes a guy and throws him up on the wall. That's not what we're about.

HILLIARD: I will say, I will go as far as to say this. Probably what you all got in that book ain't nowhere near.

DETECTIVE WHITE: I'm not with you.

HILLIARD: I'm just saying, what you all probably have in that book, I doubt that it's anywhere near it.

DETECTIVE WHITE: Anywhere near ... of what we know of why it happened?

HILLIARD: Yeah.

DETECTIVE WHITE: Well, that's why we want to hear from you, because we know there's a bigger picture there. Okay? You know what the problem is, [Hilliard], is that you got caught up in it.

HILLIARD: Yeah, I did. I was there. I'm going to just say that, I was there. But before I say anything else, I mean, I already talked to you before we go to court.

A few moments later, Detective White told Hilliard:

And like you said, we've got plenty of time to sit down and talk like this again with your attorney here, okay, because that's what you've expressed. And you've told us that you were there and there's a bigger picture that you'd like to go over it with your attorney and then explain it to us, okay, and that's where we'll leave it.

The interview ended shortly thereafter.

Prior to his trial on the charges at issue, Hilliard filed a motion to suppress alleging that police obtained the statement he provided during the September 16, 1999 interview, in violation of his "fourth, fifth and sixth Amendment [rights]" "and/or" in violation of his rights under "Article 1, Section 8, 10, or 11 of the Constitution of Virginia and Section 19.2-59 of the Code of Virginia." The videotape of that interview was the sole evidence presented during the hearing on Hilliard's motion.

Based upon that evidence, Hilliard argued he made three requests for the assistance of an attorney, but the police ignored each request and continued the interrogation. The trial court denied the motion to suppress, finding that Hilliard's questions and statements referencing an attorney were "equivocated" and that, "even if he invoked his right to a lawyer immediately prior to the statement," Hilliard's admission that he was at the scene of the crime "was purely voluntary, was not as the result of any continuing interrogation or response to a question."

Hilliard was tried on February 29, 2000 and March 1, 2000. During jury deliberations, at the end of the first day, the jury foreperson sent a note to the trial judge saying, "We are split 10-2. We can't reach a unanimous decision." The trial judge released the jurors until the following day and told the attorneys to "decide in the meantime if you want me to give them the Allen charge."

The next morning, the trial judge asked the attorneys, "Have you all discussed whether or not you want to give them the Allen charge or just continue?" Hilliard's counsel told the trial judge he did not want the court to give the Allen charge. The trial judge responded, "I will just tell them to start again, reread the evidence, don't speculate; go over the evidence and talk to each other." Neither party objected to the trial court's suggestion. Thereafter, the jury returned to the courtroom and the trial judge made the following remarks to the jury:

Good morning. Seems like we just left. You know, we all know what kind of job you all are assigned here, and it's a very difficult thing. We can't go out and get twelve better people to do this job than you all; you can do this job. You have a duty to listen to each other and you have a duty to follow the law and not speculate. But what I want you to do is to go back, try to start fresh with the instructions, take your time, go through these things and the facts and talk to each other about it. You can reach a decision in this case. So you all go back and take your time. I think they will get you some coffee and if you need a Coke or something — whatever you need, let them know; they will be glad to accommodate you. Thank you. Continue your deliberations.

Hilliard made no objection to the trial court's remarks. The jury subsequently found Hilliard guilty of murder, use of a firearm in the commission of murder, maliciously shooting into an occupied vehicle and discharging a firearm on/near school property.¹

After the jury returned its verdicts, the trial court prepared to instruct the jury with respect to sentencing. The trial court asked Hilliard, "Do you want anything about parole in Virginia or not?" Initially, Hilliard's counsel stated, "I think you should say there is no parole." However, after further discussion with the trial judge and consultation with Hilliard, Hilliard's counsel decided not to ask for an instruction regarding parole.

During its sentencing deliberations, the jury submitted three written questions to the trial court:

1. Do the sentences run concurrently?

2. Will he get credit for times [sic] served?

3. When will he be eligible for parole?

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