U.S. v. Hill, 83-5230

• Decision Date: 03 July 1985
• Docket Number: No. 83-5230,83-5230
• Citation: 766 F.2d 856
• Parties: UNITED STATES of America, Appellee, v. Carlos Ricardo HILL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 856

766 F.2d 856

UNITED STATES of America, Appellee, v. Carlos Ricardo HILL, Appellant.

No. 83-5230.

United States Court of Appeals Fourth Circuit.

Argued Feb. 4, 1985.

Decided July 3, 1985.

Richard Neuworth, Baltimore, Md. (Leslie L. Gladstone, Baltimore, Md. on brief), for appellant.

Ty Cobb, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WIDENER and WILKINSON, Circuit Judges, and MacKENZIE, Chief Judge, United States District Court for the Eastern District of Virginia, sitting by designation.

WIDENER, Circuit Judge:

Carlos Ricardo Hill was tried before a jury and convicted of kidnapping Pamela Mae Shipman and transporting her in interstate commerce in violation of 18 U.S.C. Secs. 1201(a)(1) and 2; kidnapping Miss Shipman within the special territorial jurisdiction of the United States in violation of 18 U.S.C. Secs. 1201(a)(2), 7 and 2; and murdering Miss Shipman in the second degree within the special territorial jurisdiction of the United States in violation of 18 U.S.C. Secs. 1111, 7 and 2. He was sentenced to 60 years' imprisonment on each count, each sentence to run concurrently.

In early 1982, the apartment of Sherrie Lynn Webb burned. Miss Webb suspected that Miss Shipman was responsible for starting the fire. Shortly thereafter, Miss Webb, her boyfriend Champ, ¹ and the defendant discussed injuring or even killing Miss Shipman for what she had done. Later that same day, Webb, Champ, and the defendant injected heroin and proceeded to find Miss Shipman. After locating Miss Shipman in the District of Columbia, Champ and the defendant grabbed her and dragged her into the back seat of Webb's car. Champ got into the front seat of the car with Miss Webb. The defendant remained in the back seat with Miss Shipman, and struck Miss Shipman repeatedly while seated beside her. Miss Webb drove the car toward the Baltimore-Washington Parkway.

Miss Webb pulled the car to the side of the road while on the Parkway. Miss Shipman was pulled from the car by the defendant and Champ and dragged down a hill and into the nearby woods. Several minutes later, Champ returned up the hill and asked Miss Webb if she had anything in the trunk. Miss Webb took the tire jack from the trunk of her car and gave it to Champ, and the two of them joined the defendant and Miss Shipman. At this point, Miss Shipman was lying, partly clothed, on the ground, apparently having been raped by the defendant. Miss Webb then beat Miss Shipman several times in the head with the tire jack. The three then went back to the car and drove back to the District of Columbia. Miss Shipman's body was discovered some days later.

On appeal, the defendant claims error in the trial court's limiting his cross-examination of Miss Webb ² and two other witnesses for the prosecution, Charles Tatum and Maria Armstrong. We have reviewed these claims and find that the district court did not abuse its discretion so as to commit reversible error in limiting cross-examination.

Defendant next contends that the trial judge at sentencing improperly considered testimony of Charles Tatum regarding discussions Tatum had with the defendant with respect to two contract killings. That testimony was given outside the jury's presence, and the witness was admonished not to make reference to any contract killings in the presence of the jury. The witness made no such reference. The jury did not consider such testimony in its deliberations, for it did not know of it. The trial judge did consider the testimony, however, when sentencing the defendant to sixty years' imprisonment.

We find no error in the trial court's consideration of the testimony in sentencing the defendant. We reject the contention of the defendant that the testimony must be ignored because he was not allowed contemporaneously to cross-examine Tatum regarding the killings. (Of course he did not wish to cross-examine at that time because the court excluded the evidence.) Defendant was not foreclosed from attacking that testimony at sentencing and in fact he did challenge it. He stated at his sentencing hearing that he did not even know Tatum, and he likewise challenged that part of the presentence report that dealt with Tatum's testimony. The district court's consideration of this evidence was consistent with its role in sentencing and we do not find that it overstepped legal bounds. See United States v. Lee, 540 F.2d 1205 (4th Cir.1976); Fed.R.Crim.Proc. 32.

At oral argument, the defendant claims that the district court violated FRCrP 32(c)(3)(D) in that it did not make a finding with respect to the matter of the discussion of the contract killings and attach a written report of that finding to the presentence investigation report so that it would be available to the Bureau of Prisons or the Parole Commission.

The 1983 amendment to the criminal rules added Rule 32(c)(3)(D). ³ That rule requires, as pertinent here, that, if the defendant contends there is any factual inaccuracy in the presentence report, as to such controverted matter the court will make a finding as to the allegation or a determination that no such finding is necessary because the matter will not be taken into account in sentencing. The rule further provides that "a written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission." When the information in the transcript and in the presentence report concerning the matter of the contract killing was controverted, the district court did make a finding with respect to it. That finding was as follows:

"During the course of the trial and the related proceedings there were at least two references to the fact that you were involved in some kind of professional criminal activity relating to inflicting harm on other individuals. There was testimony that your brother has said that you were involved in such activity. In addition, Tatum testified at the hearing outside of the presence of the jury that you were talking with him about the possibility of his joining you in such activity. Again, I do not know for sure whether you are engaged--were engaged in such activities or not, but it seems to me that where there is smoke there is fire and there were two independent references to your having engaged in such activities during the course of this proceeding, and that is a factor which I appropriately can and should consider in this case."

We are of opinion the finding of the district court which we have just quoted is a...