State v. Collier
| Decision Date | 04 October 2017 |
| Docket Number | Opinion No. 5518,Appellate Case No. 2015-000184 |
| Citation | 807 S.E.2d 206,421 S.C. 426 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Derek Vander COLLIER, Appellant. |
John Lafitte Warren, III, of Simmons Law Firm, LLC, and Chief Appellate Defender Robert Michael Dudek, both of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General William Frederick Schumacher, IV, both of Columbia; and Solicitor Jimmy A. Richardson, II, of Conway, all for Respondent.
Derek Vander Collier appeals his conviction for second-degree burglary, arguing the trial court improperly limited his closing argument, erred in allowing the State to play recordings of two police interviews, and should not have allowed a witness to identify him in front of the jury. We affirm.
On November 20 and 21, 2013, the Jamaican Motor Inn in Myrtle Beach, South Carolina, was closed to visitors because the room doors were being repainted. Justin Kirkman, one of the subcontractors hired for this task, stayed in the penthouse on the fifth floor of the motel during the night to check the doors at thirty-minute intervals and close them when the paint dried.
During the early morning hours on November 21, while Kirkman was in the penthouse between rounds, he heard a suspicious sound coming from another floor. Kirkman took the motel elevator to the third floor, where he noticed the light in one of the rooms was on even though he had turned off all the room lights. Kirkman went to that room and saw a man attempting to remove a television from the wall of the room.
According to Kirkman, when he confronted the stranger, the man drew what appeared to be a semiautomatic handgun and fled the room to the first floor of the motel. Despite the brevity of the encounter, Kirkman observed the man face-to-face at a close distance for ten to fifteen seconds. Furthermore, the light in the motel room was on during the confrontation, and although the man wore a hooded sweatshirt, the hood was down during their encounter.
Kirkman followed the man to the parking lot and saw him drive away in a four-door sedan from the late 1990s or early 2000s. Kirkman saw no other occupants inside the car but noticed a television in the back seat. Kirkman chased the car in an unsuccessful attempt to get the license tag number. After returning to the third floor and noticing one of the rooms was missing a television, Kirkman called the police.
About a week after the incident, Kirkman went to the police station to meet with an artist, who prepared a computer sketch of the suspect based on his description. Later, Kirkman viewed a photo lineup. After viewing the lineup, Kirkman narrowed his selection to two photos. Although he was "leaning towards" one of the two, he could not make a positive identification because of the poor quality of the images and his reluctance to implicate the wrong person. However, Kirkman also told the police he was certain he would recognize the suspect in person.
On January 29, 2014, Brian Truex, who was then a violent crimes detective with the Myrtle Beach Police Department, recognized Collier on the street. Truex attempted to contact Collier because he recognized Collier was facing numerous burglary charges. Initially, Collier attempted to evade arrest by giving Truex a false name, but the police confirmed his identity, arrested him, and transported him to the Myrtle Beach Police Department for an interview.
Truex conducted Collier's first police interview, which began five to ten minutes after his arrest. Before receiving Miranda1 warnings, Collier informed Truex he had smoked crack cocaine a short time earlier2 ; however, he did not appear to be under the influence of any drugs and was eager to proceed with the interview. Collier had only a tenth-grade education, but he was articulate and able to answer Truex's questions in an appropriate manner, providing specific and incriminating details about the burglaries for which he was being investigated. During the interview, Collier admitted to burglarizing various area hotels but claimed he did this to help his mother, who he claimed was having financial problems. Collier also revealed his method for removing televisions from hotel rooms and acknowledged he had been at the Jamaican multiple times, an admission supported by specific information that Collier provided about the hotel and surrounding landmarks.
Carol Ann Allen, a property crimes detective with the Myrtle Beach Police Department, conducted the second and third interviews of Collier on January 30 and 31, 2014. Collier discussed the November 21 incident at the Jamaican during the third interview, which took place at his request. Although Collier denied pulling a gun on Kirkman, he indicated he was the individual whom Kirkman encountered.
On April 24, 2014, Collier was indicted on one count of second-degree burglary and one count of possession of a weapon during the commission of a violent crime. The State called the case to trial on December 8, 2014.
After a jury was selected, the trial court held Jackson v. Denno3 hearings to determine the admissibility of recordings of the first and third interviews. Over Collier's objections, the trial court ruled the recordings of both interviews admissible with appropriate redactions.
Based on assurances from the State that it would not ask Kirkman to identify Collier in front of the jury, the trial court did not hold a Neil v. Biggers4 hearing. However, during the State's case-in-chief, Kirkman, the first witness to testify, was asked if the person he saw attempting to dismount a television from a hotel room wall was "in the courtroom." Because a Neil v. Biggers hearing had not taken place, the trial court declared a mistrial.
A different jury was selected, and the State called the case to trial the next day. The court held an in camera Neil v. Biggers hearing and ruled, over Collier's objection, Kirkman could make an in-court identification of Collier in front of the jury.
Among the concerns expressed by the defense to Kirkman's in-court identification of Collier was Kirkman's presence in the courtroom during the Jackson v. Denno hearing the previous day, during which audio recordings of Collier's interviews were played.5 The defense, however, did not question Kirkman or any other witness about what Kirkman saw or heard during the Jackson v. Denno hearing or whether his presence in the courtroom during the hearing affected his ability to make an impartial in-court identification.6
During the State's case-in-chief, Kirkman revealed on direct examination he was currently on probation for burglary and non-aggravated charges from Colorado. On cross-examination, defense counsel pointed out possible inconsistencies between what Kirkman claimed he told the police about the car that he saw leaving the Jamaican and the description of the vehicle in the police report. The State then requested to play a tape of Kirkman's statement to the police as a prior consistent statement. The defense objected, asserting "[i]t would just be bolstering testimony by the State" but indicated it would agree to playing the recording of "those specific questions."
The trial court noted Kirkman was asked specific questions about what he told the police and informed counsel it would grant the State's request if the defense intended to argue to the jury that Kirkman had an improper motive to fabricate his testimony and was "lying to save himself from going back to jail." Defense counsel conferred with Collier and advised the court Collier would not make this argument. Based on this assurance, the trial court denied the State's request.
Recognizing a "continuing objection by the Defense," the trial court allowed Kirkman to identify the artist's sketch made according to his description. Kirkman also identified Collier in front of the jury. The trial court also allowed the State to publish recordings of the first and third interviews to the jury.
The defense rested without presenting a case-in-chief, and the trial proceeded to closing arguments. When presenting its closing argument, the State pointed out Kirkman was still on probation and argued, The defense did not object to these remarks. However, during closing argument by the defense, counsel asserted, The State objected, and the jury exited the courtroom.
The State moved to reopen the case and play the recording of Kirkman's statements to the police, arguing it was entitled to this relief because defense counsel's closing remarks about Kirkman's motivation violated the defense's prior representation that it would neither argue recent fabrication on Kirkman's part nor suggest Kirkman gave false testimony to avoid incarceration. In response, defense counsel noted (1) he advised the trial court he would be attacking Kirkman's general credibility as a witness and (2) the State's closing argument included discussion of Kirkman's believability and reliability.
The trial court denied the State's motion to reopen the case. However, observing the defense did not make a timely objection to the remarks at issue in the State's closing argument, the trial court refused to allow the defense to argue Kirkman was "lying on the stand to save himself from going to jail because he's a convicted felon." The trial court emphasized its ruling was limited to allegations that Kirkman had an improper motive to testify untruthfully and specifically ruled the defense could attack Kirkman's credibility in other ways, including references to...
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