State v. Kirkland, 22-AP-173

Docket Nº22-AP-173
Citation2022 VT 38
Case DateAugust 09, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 38

State of Vermont
v.

Hieheem Kirkland

No. 22-AP-173

Supreme Court of Vermont

August 9, 2022


APPEALED FROM: Superior Court, Chittenden Unit, Criminal Division Case No. 21-CR-09460 Trial Judge: A. Gregory Rainville

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1. Defendant appeals the trial court's order holding him without bail pending trial pursuant to 13 V.S.A. § 7553, arguing that the State's evidence of his guilt is not great. We affirm.

¶ 2. Defendant is charged with attempted first-degree murder, in violation of 13 V.S.A. § 2301, and prohibited possession of a firearm as a person convicted of a violent crime, in violation of 13 V.S.A. § 4017(a). Attempted first-degree murder is a crime punishable by life imprisonment. 13 V.S.A. §§ 9(a), 2303(a)(1).

¶ 3. The State moved to hold defendant without bail,[1] and the court held hearings to consider the weight of the evidence on December 22, 2021, and March 3, 2022.[2] The following evidence was presented at the hearings.

¶ 4. On November 1, 2021, the South Burlington Police Department received two reports of shots fired around the University Mall at approximately 1:00 p.m. When officers arrived at the scene, they spoke to a witness who provided a sworn audio statement, during which she stated that she witnessed a man fire a handgun at another person near the parking garage at the northwest corner of the University Mall parking lot. She said that she was driving past the parking area when she saw a six-foot-tall Black man take a handgun out of his vest pocket and shoot at a shorter Black man. She indicated that she heard three gunshots. A second witness contacted the police at a later time and informed them that she heard three gunshots while parked nearby with her car windows rolled down. Officers found three Tulammo-brand shell casings in the northwest corner of the University Mall parking lot.

¶ 5. While the officers were at the University Mall, complainant went to the South Burlington Police Department, indicated he was the target of the shooting, and provided a sworn

1

statement that included the following. He went to the University Mall to meet with defendant's girlfriend to sell her drugs. When he arrived, he saw a red car with tinted windows that defendant's girlfriend usually drives. As he approached the car, he saw a man he knew as "Shiesty R. Kirkland" shoot at him an estimated five times. He had seen this person in the past and knew this person to be dating the woman he arranged to meet. The shooter was wearing black clothing and a ski mask and carrying a handgun, and fled the parking lot in the red car with tinted windows in the direction of Burlington International Airport. In addition to these statements, complainant showed officers a Facebook Messenger conversation, in which he arranged to meet an individual claiming to be defendant's girlfriend at the northwest corner of the University Mall parking lot. Complainant believed that defendant attempted to lure him to the parking lot with the intent to shoot him because defendant was jealous of complainant's previous meet-up with defendant's girlfriend.

¶ 6. Officers identified "Shiesty R. Kirkland" as defendant using photographs, Facebook pages, and criminal-history records. They also learned that a red Toyota, which was registered to defendant's girlfriend's parents and matched complainant's description of the car he saw, had been towed from the Burlington airport shortly after the shooting. Upon searching the car, they found a Nike fanny pack containing a loaded nine-millimeter handgun and Tulammo ammunition. They also obtained surveillance video from a gas station recorded the morning of the shooting that showed defendant wearing a similar Nike fanny pack. When they arrested defendant at a residential address, the owner of the residence told officers that defendant had been driving a red Toyota with tinted windows that belonged to defendant's girlfriend. The owner said she knew defendant had recently left the car at the airport because she overheard defendant and his girlfriend arguing about it. They searched defendant's residence pursuant to a warrant and found a box of nine-millimeter Tulammo ammunition with five rounds missing in a lock box containing multiple items with defendant's and his girlfriend's names on them.

¶ 7. On March 8, the trial court granted the State's motion to hold defendant without bail pursuant to 13 V.S.A. § 7553. It concluded that the evidence of guilt was great because the admissible evidence, viewed in the light most favorable to the State, could fairly and reasonably convince a jury beyond a reasonable doubt that defendant is guilty of attempted first-degree murder. Then, the court considered the factors laid out in 13 V.S.A. § 7554(b) and determined that no condition or set of conditions could reasonably protect the public from the danger defendant poses or mitigate the risk of defendant's flight.

¶ 8. On appeal, defendant argues the State has not shown that the evidence of guilt is great because the record is insufficient to identify defendant as the shooter. He points to two of the trial court's findings that he proposes are not supported by the evidence...

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