State v. Hilton, 26899–3–III.
| Citation | 261 P.3d 683,164 Wash.App. 81 |
| Decision Date | 31 October 2011 |
| Docket Number | No. 26899–3–III.,26899–3–III. |
| Parties | STATE of Washington, Respondent,v.Kevin Lee HILTON, Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, for Appellant.Terry Jay Bloor, Andrew Kelvin Miller, Benton County Prosecutor's Office, Kennewick, WA, for Respondent.
OPINION PUBLISHED IN PART
[164 Wash.App. 84] ¶ 1 For the second time, a jury convicted Kevin Hilton of two counts of aggravated first degree murder in the killings of Josephine and Lawrence Ulrich. His appeal raises numerous issues, three of which we address in the published portion of this opinion. The convictions are affirmed.
¶ 2 Lisa Ulrich discovered her parents' bodies in their Richland home shortly after 9:00 a.m. on March 21, 2002. Autopsies determined that they had been killed the evening before. There was no sign of forced entry. Both had been shot by a .45 caliber handgun.
¶ 3 Five .45 caliber bullets were recovered from the victims and their house. Police discovered three .45 caliber “A–Merc” brand shell casings at the scene. Knowing the brand to be uncommon, a detective2 began investigating local gun shops to see which of them sold that ammunition and to whom.
¶ 4 The Ulrichs were longtime landlords who owned seven residential rental properties in Richland at the time of their deaths. Clasped in Mr. Ulrich's hand was a yellow note folded to conceal a rent receipt for Kevin Hilton in the sum of $3,475, representing the total of several months of back rent he owed the Ulrichs. A file folder containing Mr. Hilton's rental documents was found on top of the couple's refrigerator. It contained a three-day, pay-or-quit notice dated March 15, 2002 directed to Mr. Hilton. The receipt book was missing, as was the kitchen telephone handset. The missing telephone had a caller identification (ID) feature. The caller ID feature on an upstairs telephone showed that the last telephone call had been from Kevin Hilton at 6:42 p.m. on March 20.
¶ 5 Police contacted all of the Ulrichs' tenants on March 21 except for Mr. Hilton. Officers were able to make contact with him the next day; he invited them into his duplex. He explained his whereabouts on the night of the murder—he had shopped for groceries at Winco, returned the book Hard Time to the Richland library, and then gone to volleyball practice. He also told them that he owed the Ulrichs $3,475, but they had reached an agreement over the telephone on March 20th on a plan to pay the rent. Police also learned that Mr. Hilton owned several rifles and engaged in competitive shooting events. He said he had previously owned four handguns, including two Norinco .45 caliber handguns. He said that he had sold one Norinco to Dirk Leach and the other to someone at a gun show in Walla Walla six to eight months earlier. 3
¶ 6 Police later served a search warrant on Mr. Hilton's duplex. They discovered some used .45 caliber A–Merc shell casings as well as receipts from Schoonie's Rod Shop for A–Merc .45 caliber ammunition. Testing determined that the shell casings had been fired from the same gun used to kill the Ulrichs. The murder weapon was never located.
¶ 7 The prosecutor ultimately filed two charges of aggravated first degree murder against Mr. Hilton. The case proceeded to jury trial in 2003. Mr. Hilton did not testify in that trial. The jury found him guilty as charged. He then appealed to this court.
¶ 8 This court determined that the search warrant for the duplex, which had uncovered the matching A–Merc shells, was invalid due to lack of specificity to guide officers in their search. Because the matching shells were very significant incriminating evidence, the convictions were reversed. State v. Hilton, No. 22116–4–III, 2006 WL 183009 (Wash.Ct.App. Jan. 26, 2006), review denied, 158 Wash.2d 1027, 152 P.3d 348 (2007).
¶ 9 The case was scheduled for retrial. Among the many pretrial matters the parties addressed was how to reference testimony from the first trial. Defense counsel requested that the first trial simply be referred to as the “prior proceeding.” The trial judge and opposing attorneys agreed with that nomenclature. Report of Proceedings (RP) at 224–226.
¶ 10 The State also moved in limine to prohibit the defense from accusing Lisa Ulrich of committing the murders. Defense counsel advised the court about numerous topics that Lisa Ulrich had been cross-examined about during the first trial and indicated that the defense intended to again cover those areas. He did not want the third party perpetrator ruling to limit those areas of inquiry. RP at 201–204. Defense counsel then concluded his argument:
So, minimally, I think the court should allow what was allowed last time in terms of cross-examination. We don't characterize that as other party perpetrator evidence, and we're entitled to do it under the rules of cross-examination.
RP at 205. The trial court ruled that third party perpetrator evidence would be excluded. The court explained:
THE COURT: There is nothing in the record that causes me to overrule the former ruling of the court that third party perpetrator evidence will be excluded. It is, once again, excluded. In principle, I don't think the defense has any heartburn with the ruling this time or last. However, I am very sensitive to the fact that defense is entitled to the old sifting and thorough cross-examination.
There are certain items which, to me right now, are in the nature of motion in limine. Ms. Ulrich's shoe size is clearly across the line and constitutes third party perpetrator evidence in my opinion, but there are many other things that have been raised by either the defense or the State that could be either.
You know, records. The discussion about the records, things like that. I'm not prepared at this time to rule those out. In fact, if you're asking me to—in the—to exclude ‘em now, I'll deny it. There's gonna be a lot of items that are gonna have to be taken up during the course of the trial on a case-by-case basis as issues arise.
Whether or not you choose to object to—well, they may not even ask the questions about ‘em, but if they do ask similar questions about these other things, will you choose to raise an objection this second time around or let it go? I don't know.
So I'll field those objections as they pop up, but I'm inclined to agree with the defense. There's a lot of information that the State is objecting to that may be, might be considered third party perpetrator evidence that is nothing more than thorough and sifting cross-examination of testimony that is developed by the State in its presentation in chief with that witness, and so, you know, just because it maybe, might be third party evidence, doesn't mean it's gonna be excluded if it has a—some semblance of a bearing on cross-examination of direct testimony of a witness.
¶ 11 Although the receipts seized from Mr. Hilton's duplex and the matching casings had been suppressed, the prosecutor still sought to admit evidence that Mr. Hilton had purchased A–Merc .45 caliber bullets. The trial court ruled that the Schoonie's Rod Shop owner could testify and her records of the sales could be admitted at trial. The court reasoned that the evidence was admissible under either the inevitable discovery or independent source doctrines. Clerk's Papers (CP) at 26.
¶ 12 Unlike the first trial, Mr. Hilton testified on his own behalf in the second trial. Typically without objection, the prosecutor was permitted to question Mr. Hilton about the fact that he was familiar with the discovery and prior testimony. The prosecutor also argued in closing that Mr. Hilton had tailored his alibi testimony to fit the State's evidence.
¶ 13 The jury found Mr. Hilton guilty of both counts of first degree murder and also found that both offenses were committed with the aggravating factor that there were multiple killings committed as part of a common scheme or plan. He was sentenced to life in prison without possibility of parole. He then timely appealed to this court.
¶ 14 A week after oral argument in this court, the Washington Supreme Court released its decision in State v. Martin, 171 Wash.2d 521, 252 P.3d 872 (2011). The parties filed supplemental briefs on the impact of Martin to this case.
¶ 15 The published portion of this opinion addresses the following three issues: (1) whether the trial court erred in admitting the gun shop evidence under the independent source doctrine; (2) whether the prosecutor violated Martin when he questioned Mr. Hilton and argued about his ability to tailor testimony; (3) whether the trial court erred in excluding third party perpetrator evidence and argument.
¶ 16 The trial court admitted the gun shop owner's testimony and records under both inevitable discovery and independent source theories. The State concedes that the inevitable discovery doctrine does not apply in Washington,4 but does contend that the trial court correctly applied the independent source doctrine to admit the evidence. We agree.
¶ 17 The conclusions of law entered following a suppression hearing are reviewed de novo. State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002). Factual findings are reviewed for substantial evidence, i.e., evidence sufficient to convince a rational person of the truth of the finding. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings are treated as verities on appeal. Id.
¶ 18 The exclusionary rule generally requires that evidence obtained from an illegal search and seizure be suppressed. State v. Gaines, 154 Wash.2d 711, 716–717, 116 P.3d 993 (2005). Evidence derived from an illegal search may also be suppressed as fruit of the poisonous tree. Id. at 717, 116 P.3d 993; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Typically, the...
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