Hilton v. United States, 17-CF-1344

• Citation: 250 A.3d 1061
• Decision Date: 13 May 2021
• Docket Number: No. 17-CF-1344,17-CF-1344
• Parties: Dwayne HILTON, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

250 A.3d 1061

Dwayne HILTON, Appellant,

v.UNITED STATES, Appellee.

No. 17-CF-1344

District of Columbia Court of Appeals.

Argued November 18, 2020

Decided May 13, 2021

Debra L. Soltis, with whom Paul Y. Kiyonaga and Marcus T. Massey, Washington, were on the brief, for appellant.

Peter S. Smith, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Sharon Donovan, and Alicia Long, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and Thompson, Associate Judges, and Fisher, Senior Judge.

Fisher, Senior Judge:

Appellant Dwayne Hilton was convicted of one count of first-degree murder of Mico Briscoe while armed, three counts of assault with intent to kill while armed (which included an assault of Kevin Johnson), and four counts of possession of a firearm during a crime of violence. Appellant argues that the trial court abused its discretion by admitting identification testimony; erred in admitting evidence suggesting that the murder of appellant's friend, Robert Mallory, was a motive for the shooting in this case; and erred in denying his pretrial motion to present third-party-perpetrator evidence. Appellant also argues that the trial court erred in denying his motion for a new trial based on the government's failure to disclose evidence related to the subsequent murder of Kevin Johnson. We affirm, but conclude that appellant's four PFCV convictions merge into one.

I. Factual Background

On November 26, 2011, there was a fatal shooting outside of the Circle 7 convenience store on Mount Olivet Road, N.E., in the Trinidad neighborhood of Washington, D.C. Surveillance footage from the Circle 7 and the nearby Northeast Market showed the murder victim, Mico Briscoe, and his friends, Terrell Brent, Tevon Brent, Kevin Johnson, and Princeton Thorne, walking through the parking lot toward the Circle 7 store. Two men were trailing them and began jogging to catch up. As the first group arrived at the Circle 7, Terrell Brent entered the store and the others stayed outside. The two men trailing them started shooting. Mico Briscoe, Tevon Brent, Kevin Johnson, and Princeton Thorne ducked and ran to a nearby alley. Briscoe later died of gunshot wounds to the chest. Kevin Johnson was struck in the arm, and both Tevon Brent and Princeton Thorne were grazed by bullets.

Northeast Market, Circle 7 Express, and Kovak's Liquor are all located along Mount Olivet Road, N.E., in a row running from west to east. West Virginia Avenue intersects with Mount Olivet Road and then, further east, Montello Avenue intersects with Mount Olivet Road. Both intersections are located to the west of the three stores. A red light camera captured a gold car traveling northbound on West Virginia Avenue and then turning right on Mount Olivet towards the Circle 7 prior to dropping off the suspects in the shooting. The government also introduced footage from a rotating camera on Montello Avenue that was directed at the Northeast Market parking lot. It showed the suspects walking and then starting to run towards the Circle 7. Footage from Northeast Market and Circle 7 captured different angles of the shooting. Footage from Kovak's Liquor showed the same gold car turning around in the Kovak's parking lot, then waiting. The two men ran to the car and jumped in, and the car sped down Mount Olivet Road toward the E Street/Rosedale neighborhood.

Law enforcement officers linked the shooting to a longtime feud between a group from the Trinidad neighborhood and a group from the E Street/Rosedale neighborhood. The decedent, Briscoe, and his companions were associated with the Trinidad neighborhood, and the appellant is associated with the E Street/Rosedale neighborhood.

Detective James Wilson, who was investigating the case, asked Metropolitan Police Department (MPD) Officers Jeffrey Scharf and Andre Sturgis to watch the surveillance footage. Both officers had patrolled the E Street/Rosedale area for over five years.

Detective Wilson showed Officer Scharf the video of the shooters running behind Briscoe and his friends. Officer Scharf quickly identified one of the men as Dwayne Hilton. He later testified that he recognized the appellant from his dreadlocks, left-handedness, and unique gait.¹ Detective Wilson showed the same video to Officer Sturgis a couple of weeks later. Officer Sturgis testified that neither Officer Scharf nor Detective Wilson had told him that they believed one of the shooters was appellant. Officer Sturgis recognized appellant because of the way he ran.

Princeton Thorne, one of the victims, also identified appellant as one of the shooters. A prosecutor and Detective Gus Giannakoulias met with Thorne prior to his grand jury testimony. Upon seeing the name of the case on his subpoena, Thorne was adamant that appellant, whom he had known since elementary school, was not one of the shooters. After viewing the video footage, however, Thorne began "bawling" and stated, "I can't believe that that's Dwayne Hilton. I can't believe he shot [me]." Thorne recognized appellant's unique run, left handedness, and long dreadlocks.

Officer Sturgis, Officer Scharf, and Princeton Thorne testified about these identifications at trial. The prosecution also relied on video footage of the getaway car picking the shooters up at Kovak's Liquor to connect appellant to the shooting. Analysis of the footage and other investigation led the police to conclude that the car that picked up the fleeing gunmen was a 2001 gold Mitsubishi Galant owned by Jesmenia Cooper Queen. Ms. Queen's son, Ezra Queen, is one of appellant's closest friends, and he often drove his mother's car. At the time of the shooting, appellant Hilton lived at Ms. Queen's house.

The government also presented three post-shooting phone calls from Ezra Queen, who was detained at the Prince George's County Correctional Facility for a matter unrelated to this case. On the second call, Ms. Queen told Ezra the police had visited her and wanted to know how often he used her car and if he was involved in a shooting; the police had a photo of the car. Immediately after speaking to his mother, Ezra called appellant to tell him about his conversation with his mother and that the police had a photo of her car leaving the scene. Appellant asked Ezra if the police "say the tags match" those on his mother's car.

II. Issues Related to Trial

A. Evidence Identifying Appellant

1. No impermissible suggestivity

Appellant argues that the trial court should not have admitted the testimony identifying him in the surveillance video because the identification procedures used by the police were "highly suggestive" and the results were unreliable. "Because they determine the issue of admissibility, suggestivity and reliability are mixed questions of law and fact." Walker v. United States , 201 A.3d 586, 596 (D.C. 2019). " ‘We review mixed questions of law and fact under our usual deferential standard of review for factual findings ... and [apply] de novo review to the ultimate legal conclusions based on those facts.’ " Caison v. Project Support Servs. Inc. , 99 A.3d 243, 248 (D.C. 2014) (quoting Hickey v. Bomers , 28 A.3d 1119, 1123 (D.C. 2011) ).

To suppress an out-of-court identification on due process grounds, a defendant must prove that the procedure was " ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ " Long v. United States , 156 A.3d 698, 707 (D.C. 2017) (quoting Neil v. Biggers , 409 U.S. 188, 197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (internal quotations omitted)). Even if the procedure is found to be impermissibly suggestive, the government can defeat the motion to suppress by showing the identification was reliable nonetheless. Kaliku v. United States , 994 A.2d 765, 782 (D.C. 2010). " ‘[I]f the identification procedures are not unduly suggestive, the details of those procedures are admissible and no reliability finding is necessary.’ " United States v. Brown , 700 A.2d 760, 762 (D.C. 1997) (quoting Greenwood v. United States , 659 A.2d 825, 828 (D.C. 1995) ).

The trial court found that none of the identification procedures were suggestive. It reasoned that Officer Scharf and Officer Sturgis did not know what the tape was about before they watched it, and neither officer knew for whom he was looking.² The only thing Detective Wilson told the officers prior to showing them the video was that he needed their assistance identifying individuals in surveillance footage. Detective Wilson did not know appellant Hilton, nor had he ever heard of him prior to Officer Scharf's identification. The trial court credited Officer Scharf's testimony that the question Officer Branson posed to him before he saw the video (inquiring if any of "Gucci's"³ friends had dreadlocks) did not influence his identification of appellant.

When Princeton Thorne was not cooperative at trial, the prosecutor introduced Thorne's grand jury testimony identifying appellant. The trial court found that when Thorne came "to the homicide branch," he was adamant that appellant was not responsible for the shooting. When shown the enhanced version of the video, Thorne started bawling, and said the perpetrator was Dwayne Hilton, he was sure.

The trial court did not clearly err in determining the facts, and it properly applied the law in concluding that the identification procedures were not suggestive. The officers viewed the surveillance video separately, and the trial court credited that they were not aware of for whom or for what they were looking. Detective Wilson "never knew or heard of Mr. Hilton, so he could not have made any suggestions about who [Officer Scharf] was to ... look for on that video." Before viewing the footage, Princeton Thorne was convinced that appellant was not involved in the shooting.⁴

Although the trial court found no suggestivity in the identification procedures,...