Devane Latril Hillard v. State of Alabama

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REL: 05/28/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-09-0282 Devane L a t r i l Hillard v. S t a t e o f Alabama Appeal WINDOM, Court Judge. Devane Latril degree robbery, his from H o u s t o n C i r c u i t (CC-09-25) resulting Hillard a violation sentence appeals h i sconviction for first- o f § 1 3 A - 8 - 4 1 , A l a . Code 1975, a n d of 30 years i nprison. CR-09-0282 The evidence presented following facts. telephoned crack crack, from cocaine. and a 21, Shackelford t h e two night July tended D a n n y " B i g D" S h a c k e l f o r d of On at t r i a l club planned known 2008, as Marzine to arrange agreed t o meet to e s t a b l i s h the to s e l l McMillian the purchase McMillian i n a parking Frank's to while he some l o t across execute the drug transaction. According Shackelford into Two white McMillian, was waiting near F r a n k ' s , a w h i t e c a r and a g r e e n t r u c k a parking men to were l o t across the s t r e e t from i n the green One car. truck individuals of the and Frank's. three men waved i n d i c a t i n g t h a t he s h o u l d a p p r o a c h t h e v e h i c l e s . in not the white car, brandished t o move. Andrews At shot him. r e m e m b e r e d was Shortly that point, (R. the truck thereafter, a shotgun 23.) The was W h i l e he was a t t h e h o s p i t a l , M c M i l l i a n as one of the turned next individuals who 2 robbed previously McMillian to f l e e , thing and t h e c a r s p e e d i n g McMillian McMillian and o r d e r e d McMillian i n the McMillian, As a p p r o a c h e d t h e v e h i c l e s , J o n a t h o n A n d r e w s , who was pulled (R. 2 0 . ) were at on and McMillian away. taken to the h o s p i t a l . identified him. Shackelford McMillian also CR-09-0282 identified Jonathon Andrews as t h e i n d i v i d u a l He, h o w e v e r , c o u l d n o t i d e n t i f y the other who shot him. individuals i n the v e h i c l e s a n d d i d n o t know w h e t h e r H i l l a r d h a d b e e n i n v o l v e d i n the robbery. Sergeant Ray Weihe summoned t o t h e s c e n e After McMillian involvement into of the Dothan P o l i c e t o i n v e s t i g a t e t h e r o b b e r y and s h o o t i n g . informed Sergeant i n the robbery, custody. While D e p a r t m e n t was Weihe Sergeant i n custody, to c o u n s e l and gave a s t a t e m e n t . of Weihe Shackelford's took Shackelford S h a c k e l f o r d waived his right According to Sergeant Shackelford admitted h i sp a r t i c i p a t i o n Weihe, i n t h e crime and s t a t e d t h a t H i l l a r d was i n v o l v e d i n t h e p l a n n i n g a n d i n t h e e x e c u t i o n of the robbery. Weihe learned that Harris, car Further, through h i s i n v e s t i g a t i o n , who and were that individuals After Hillard, Jonathon c o u s i n s , were Shackelford i n the green discovering and Andrews, and Archawacha the individuals Jermaine learned that i n the white Tillman were the truck. the identities of the i n v o l v e d i n t h e r o b b e r y , S e r g e a n t Weihe sought While executing a warrant Sergeant f o r Jermaine T i l l m a n , Archawacha H a r r i s 3 might be individuals to arrest them. Sergeant Weihe living at Melissa CR-09-0282 Brantley's apartment. Brantley's arrived apartment to look at Brantley's Brantley answered. He and other officers for Harris. apartment, When t h e to officers t h e y k n o c k e d on t h e d o o r a n d At that point, received her consent to search went the o f f i c e r s the apartment. asked f o r and As t h e o f f i c e r s w e r e e n t e r i n g t h e a p a r t m e n t , t h e y saw H a r r i s a n d a r r e s t e d h i m . After remainder arresting of the apartment. apartment, the the o f f i c e r s kitchen and p l a c e d a tape-recorded the He Andrews While found c a r t o go would At also take securing Hillard secured the rest hiding However, that Later, Hillard he d e n i e d rode planned the i n the car that he was and d i d not t h i n k that with involved o f t h e r o b b e r y a n d s t a t e d t h a t he o n l y to Frank's gave t h a t he was i n and t h e o t h e r s he of the i n a closet i n i n w h i c h he a d m i t t e d admitted the a rode i n robbery place. trial, the others participate According officers him under a r r e s t . statement and H a r r i s . in the planning and the r o o m when A n d r e w s , S h a c k e l f o r d , robbery. the Harris, Hillard testified on t h e n i g h t i n the planning to H i l l a r d , t h a t he was w i t h of the robbery, or execution Shackelford b u t he of the d i d not robbery. he t h o u g h t t h e men w e r e j u s t j o k i n g when 4 CR-09-0282 they discussed robbing he i n Brantley's was hiding because there unrelated On was McMillian. Hillard closet an o u t s t a n d i n g also explained when warrant the p o l i c e misdemeanor. appeal, Hillard an o u t - o f - c o u r t argues that the c i r c u i t argues s t a t e m e n t made b y S h a c k e l f o r d . that Sergeant Shackelford's statement planning and execution of hearsay; therefore, Weihe's that Sergeant Weihe objection. agreed, that State the circuit about argued as a s t a t e m e n t Shackelford's Hillard court (R. statement ... i n f u r t h e r a n c e This was court erred the statement was circuit "a s t a t e m e n t of the conspiracy" Court in by allowing over Hillard's statement in court was furtherance court by a the inadmissible and t h e c i r c u i t of a co-conspirator (The regarding involved out-of-court 45.) regarding testimony was abused Specifically, 1 robbery at t r i a l , Shackelford's the conspiracy. objection.) the to t e s t i f y The admissible of entered f o r h i s a r r e s t on a n i t s d i s c r e t i o n by a l l o w i n g S e r g e a n t Weihe t o t e s t i f y Hillard that ruled that co-conspirator and o v e r r u l e d Hillard's disagrees. Because of our d i s p o s i t i o n of t h i s i s s u e , t h i s Court w i l l not address the second i s s u e r a i s e d i n H i l l a r d ' s brief. 1 5 CR-09-0282 "The admission within t h e sound State, 80 8 question or exclusion discretion of the trial court, question upon showing of a clear Loggins, i s not admissible of Evidence], Supreme o f Alabama Court "'Hearsay' declarant while evidence against will abuse Alabama Rules course and Taylor A p p . 2000 ). of A l a . R. E v i d . statement by a that This party. Court co-conspirator admissible than of a has e x p l a i n e d that res the defendant." 6 by [the offered i n asserted." party A l a . R. of Deardorff Rule of hearsay during and the offered Evid. "[s]tatements gestae R. o n e made b y t h e of the conspiracy," the parte 802, A l a . from the d e f i n i t i o n 801(d)(2)(E), against Ex or hearing, Rule within except Rule of the matter coconspirator and i n f u r t h e r a n c e reversed r u l e s adopted by t h e other at the t r i a l Excluded tothe court's as p r o v i d e d o r by o t h e r the truth "The 2000). o r by s t a t u t e . " testifying v. trial discretion." except i s a statement, to prove the n o t be 771 So. 2d 1 0 9 3 , 1103 ( A l a . "Hearsay "a matter of a d m i s s i b i l i t y of evidence i sgenerally l e f t on t h a t is i s a court." (Ala. Crim. determination 801(c), evidence of the t r i a l So. 2d 1148, 1191 discretion Evid. of the made by a crime are v. S t a t e , 6 So. CR-09-0282 3d 1 2 0 5 , 1218 ( A l a . C r i m . A p p . 2 0 0 4 ) 790 S o . 2 d 9 7 5 , 999 ( A l a . C r i m . Moore v. S t a t e , "[W]here proof an accused's done or of a conspiracy co-conspirator State, 354 (citations 838, So. 2d i n turn, App. against of the of the crime, See a l s o ( A l a .Crim. Duncan crime, during the of a plan the accused." 1177-78 1988)). any a c t o r statement by and i n t h e f u r t h e r a n c e 1172, omitted). (Ala. Crim. exists, the commission i s admissible quoting i n the commission of the conspiracy design, App. 2000), 5 3 9 S o . 2 d 4 1 6 , 420 o r made b e f o r e existence (quoting A c k l i n v. S t a t e , Conley App. v. S t a t e ; v. 1977) 827 S o . 2 d 854 ( A l a . C r i m . A p p . 1 9 9 9 ) ( s a m e ) ; B r o a d e n v . S t a t e , 641 So. 2d 1 3 0 2 , 1303 ( A l a . C r i m . 610 So. 2d 1 2 1 2 , 1222 ( A l a . C r i m . App. 1 9 9 2 ) . the extrajudicial statement App. 1994); of a be met. furtherance have been Finally, the statement of the conspiracy. made during ... t h e e x i s t e n c e independent (Ala. First, Crim. evidence.'" App. 1992) the three d i s t i n c t must Second, pendency have of v. S t a t e , (quoting 7 State, order f o r to qualify conditions been made i n the statement of the conspiracy Deutcsh v. "'In coconspirator under the c o c o n s p i r a t o r s ' e x c e p t i o n , must Deutcsh Annot., the must conspiracy. must be shown b y 610 S o . 2 d 1 2 1 2 Necessity and CR-09-0282 Sufficiency Admission of 1006 conditions court (1972)). App. the f i r s t conspiracy have admissible 7 6 1 , 763 Advisory of Coconspirators, 1993) the three out-of- one [co-conspirator] been accomplished, against federal i f i t is the ends Rule Supreme "confession Court enterprise. F i s w i c k v. U n i t e d United the i s not It States, are 197 8 0 1 , A l a . R. co-conspirator's "made or admission apprehended criminal of exist, longer the after the United by one i n any is coconspirator sense rather 329 U.S. S t a t e s v. C e s a r e o - A y a l a , has a a of the as explained, a after frustration (1946). 576 F . 3 d 1 1 2 0 , 1 1 3 1 8 is Further, furtherance 2 1 1 , 217 State statement objectives States So. Evid., ( r e c o g n i z i n g t h a t under both a or of E a t o n v. S t a t e , See a l s o authority, after a n d no another...." ( A l a .1967). " i n c r i m i n a t i n g acts c o n s p i r a c y have e i t h e r f a i l e d o r been a c h i e v e d " ) . been 46 632 S o . 2 d (reiterating requirement, Committee's Notes inadmissible the Allow statement). of and Statements to to the a d m i s s i b l i t y of a c o - c o n s p i r a t o r ' s statements 2d of Conspiracy See a l s o , F r a z i e r v . S t a t e , ( A l a . Crim. Regarding not Evidence of E x t r a j u d i c i a l A . L . R . 3 d 1148 1002, Independent he has of the of i t . " See also (10th C i r . CR-09-0282 2009) his ("When a d e c l a r a n t confession furtherance and of the U.S. 211, 217 452, 455 (8th admissions (1946)."); Cir. conspiracy and exception); United Cir. 1978) (same). have repeatedly inadmissible any State, v. 791 Illinois, U.S. 123 App. 1994); App. 476 (1968); F.3d co-conspirator's fall within the Lopez, "that the 584 this a accused 530 1175, accused [and] (Ala. Crim. Alabama (1986); R.L.B. v. State, State, Bruton 647 627 a (2nd courts codefendant's not rule...." App. 1181 i n the does to the hearsay 1024 F.2d approach, the of co-conspirator nontestifying E p h r a i m v. and a 329 236 in furtherance implicating 979, U.S. Grimmett, that in States, i s not Following held 2d v. not police exception So. United are to S t a t e s v. against recognized enforcement States (holding apprehended, not does police law been F i s w i c k v. United 2001) confession to to conspiracy. post-arrest statement c o c o n s p i r a t o r has 2000) crime fall is within Jackson (citing v. Lee v . U n i t e d S t a t e s , 3 91 So. So. 2d 2d 803 (Ala. Crim. 1102 (Ala. Crim. 1993)). Applying Shackelford's hearsay these principles, this statement i s not e x c l u d e d pursuant to Rule 801(d)(2)(E), 9 Court holds that from the d e f i n i t i o n A l a . R. Evid, of because CR-09-0282 his p o s t - a r r e s t admission existence of and in t o S e r g e a n t W e i h e was n o t d u r i n g t h e the furtherance of was Specifically, Shackelford's statement conclusion the robbery. Further, of statement consisted conspirators' not See of involvement i n furtherance Hillard of participated and hearsay the co- the statement was the conspiracy. State statement i n the planning the his Accordingly, the c i r c u i t i n allowing Shackelford's after Shackelford's his i n the robbery, a t 217. i t s discretion evidence because admission conspiracy. made of, but rather f r u s t r a t e d , F i s w i c k , 329 U.S. abused an the and to court admit into indicating execution that of the robbery. Further, say that the statement Ala. R. under the f a c t s erroneous was harmless App. P.; Chapman v . hearsay statement testimony during the planning participate admission beyond Shackelford's and of t h i s case, a negated H i l l a r d ' s testimony reasonable 386 directly the e f f e c t and e x e c u t i o n i n either. Shackelford's California, statement to of t h i s Court 18 he was of the robbery Likewise, Rule rebutted that hearsay doubt. U.S. Shackelford's cannot 45, (1967). Hillard's present but d i d not statement t h a t he was h i d i n g f r o m t h e p o l i c e 10 CR-09-0282 b e c a u s e t h e r e was an o u t s t a n d i n g w a r r a n t u n r e l a t e d misdemeanor charge. strong case evidence the of g u i l t , t h i s of H i l l a r d ' s improper identifying beyond H i l l a r d as Because contributed the to the court jury's admission App. P. i s reversed, consistent with this REVERSED AND say that overwhelming Shackelford's a participant an the State p r e s e n t e d a cannot so on the as to statement i n the State's render directly robbery harmless doubt. substantial 4 5 , A l a . R. of Shackelford's erroneous Hillard's Court g u i l t was admission a reasonable Although for his arrest hearsay verdict, of that rights and statement this Court statement t h u s was may concludes adversely have that affected not harmless. Rule A c c o r d i n g l y , the judgment of the c i r c u i t and this cause remanded for proceedings opinion. REMANDED. W i s e , P . J . , and W e l c h , K e l l u m , and M a i n , 11 J J . , concur.

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