State v. Hillary

441 S.C. 239

892 S.E.2d 541

The STATE, Respondent, v. Johnathan Lamar HILLARY, Appellant.

Appellate Case No. 2019-001048

Opinion No. 6015

Court of Appeals of South Carolina.

Heard June 15, 2023

Filed August 16, 2023

Rehearing Denied September 18, 2023

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, Senior Assistant Attorney General J. Anthony Mabry, all of Columbia, and Solicitor Jimmy A. Richardson, II, of Conway, all for Respondent.

GEATHERS, J.:

Johnathan Lamar Hillary (Hillary) challenges his convictions for murder, armed robbery, kidnapping, and possession of a weapon during the commission of a violent crime. He argues that (1) a statement he gave to law enforcement, admitted into evidence at trial, was not voluntary; (2) evidence concerning a separate robbery allegedly committed by Hillary should not have been admitted at trial; and (3) the sentence for kidnapping was improper given that Hillary was also convicted and sentenced for murder. We affirm in part and vacate in part.

FACTS/PROCEDURAL HISTORY

In the fall of 2016, Kaitlin Buckley (Kaitlin) reported to police that her father, Timothy Buckley (Buckley), was missing. At that point, the elder Buckley had not been heard from for several days. ¹ Family members and friends joined the search for Buckley, a retired police officer.

Among those involved in the search were Carl Wenner and his brother, who was a lifelong friend of Buckley. The two men found Buckley's truck around October 5, 2016, on 29th Street in Myrtle Beach. The bloodied passenger side of the vehicle interior indicated that Buckley's fate was likely dire, but neither Buckley nor his body were immediately found. John Caulder, a crime scene investigator, found tissues in some of the blood indicating an unidentified individual might have been shot in the head.

Buckley's body would not be recovered until around November 10, when two young men on a before-school excursion came upon what one of the men believed to be a dead animal; his companion realized instead that the badly decomposed corpse was human. According to a subsequent autopsy, Buckley had been killed when he was shot in the back of the head.

Following a request from Horry County authorities, law enforcement in Georgia tracked Hillary to a townhouse in Atlanta. ² Based on the probation status of an individual at the unit, law enforcement began searching the home. ³ There, officers found a revolver hidden in an upstairs bathroom. The serial number of that revolver matched the serial number of a revolver belonging to Buckley. Additionally, on the first floor of the townhouse, officers found a holster that had a broken snap—a characteristic of Buckley's holster, according to Kaitlin. Credit cards, a driver's license, and various other forms of identification under the name "Bocar Bah" were also found in the townhouse. ⁴ There were indications that Hillary and Bernithia Young (Young) resided in the upstairs portion of the townhouse.

While Hillary was held in Georgia, two Horry County detectives—Gregory Lent and David Dudley—traveled to Atlanta to interrogate him about Buckley's murder. ⁵ Hillary initially told the detectives that on the night Buckley disappeared, Hillary had given fake methamphetamine to a haggard man on the street in exchange for a chance to drive the man's truck. Hillary said he later abandoned the truck and threw the keys aside after the man began persistently calling Hillary's phone. Hillary then arranged for Young to pick him up.

During the interrogation, the detectives continued to draw out Hillary's version of events. Then, they started trying to poke holes in it. At one point, apparently frustrated by Hillary holding to his story, Detective Lent said: "Let him go back to South Carolina and he can tell it to a jury when they give him the death penalty." ⁶ At another point, Lent discussed some of the possible reasons for a conflict between Hillary and Buckley in the moments before Buckley's murder. Perhaps, Lent suggested, "[s]omeone tried hurting [Hillary] and [he] had to do what [he] had to do to defend [himself]." Lent also made clear that cooperation was in Hillary's best interest; he told Hillary that if Hillary did not "explain" the slaying, "I'm going to walk out those doors and I'm going to sing the story that John Hillary don't give a s**t about nobody and that he's a cold-blooded killer." Later, Lent told Hillary: "I told you, I'm not asking if you did it or not. I'm asking you what happened. I'm asking you how it happened. I'm asking you to provide some story that might just save your a**." Detective Dudley said: "Let's put it like this[:] When a jury sees you driving around in the truck for hours with blood on the inside with no remorse for what you did, you think they're going to hesitate to put a needle in your arm?"

The two detectives applied other techniques as well. They misled Hillary about the quantity and quality of evidence against him. Detective Lent indicated Hillary could "come up with a lie" explaining Buckley's death. ⁷ Detective Lent again posed potential narratives, including: "Maybe [Buckley] rolled up on you looking for sex." Eventually, Hillary began to tentatively suggest he might talk.

Hillary: If I tell ...

Det. Lent: If you, if you're honest with me, it at least goes towards showing remorse. It goes towards helping that man's family understand why. Dude, they're burying him this weekend. You know what they got to bury? Probably a cardboard box about that big. With some loose f*****g bones in it. That's all they got.

Det. Dudley: You tell us the truth and we'll help you. We ain't going to hang you out to f*****g dry. So tell us the truth, John.

Det. Lent: Dude, you're probably, it's probably been eating you up for the last 50 days. Whatever it's been. You're right, I have looked at your criminal history. It ain't nearly as bad as a whole bunch of others that I've seen here.

Hillary: I'm not that, I'm not a bad person, man.

Within moments of that exchange, Hillary began to unspool a new story. He told the detectives to "[p]ut yourself in this scenario," suggesting that Buckley had picked Hillary up on the road and attempted to sexually assault him in the truck. Hillary gradually seemed to abandon this framing of his narrative and tell the detectives what he claimed had happened. According to Hillary, Buckley pulled a gun. Hillary was able to grab the gun in a struggle between the two men.

Hillary said he fled through the passenger-side window of the truck with Buckley "on my tail." Hillary then said he used Buckley's gun to "defend" himself because he was worried that Buckley might have another firearm. Hillary said he did not know where the first shot he fired hit Buckley. The detectives then pressed Hillary on a second shot.

Det. Lent: So now here, here's the question. The second time you shot him, where ⁸ did you have to shoot him to make sure that, that he wasn't suffering?

Hillary: That he wouldn't end up, he wouldn't attack me no more. I just want[ed] to make sure.

Det. Lent: Right.

Hillary: You know what I mean but ...

Det. Lent: But where on his body did you shoot him?

Hillary: I don't know.

Det. Lent: The second time you shot him?

Hillary: I don't know. I just, it wasn't premeditated. It wasn't no, it wasn't no thought about it, you know, it just ...

Det. Lent: How many times did you end up shooting him? How many times did you fire the gun that night [inaudible] to protect yourself; two times?

Hillary: Twice.

Det. Lent: Ok. Alright. The reason why I ask, ‘cause obviously when we go out there, right where we found him, he had a gunshot wound to his head.

Hillary: Oh, did he? I ain't aim to hit him in his head.

Hillary said that after the shooting, he left the body nearby. Hillary also appeared to admit to taking some money, an admission that followed after Dudley's comments that "[i]t's not like we're going to slap a robbery charge on you, ok. Please don't worry about that, that's not what we're after." Hillary also said he met up with Young, and they disposed of the truck.

Hillary was charged with murder, armed robbery, kidnapping, and a felony involving the use of a deadly weapon. The State did not seek the death penalty.

At trial, more than twenty witnesses testified over five days. That included testimony at hearings held to determine whether Hillary's statement to police was voluntary and whether the jury could hear about the robbery of a truck driver named Bocar Bah.

Regarding the first issue, Detective Lent and Hillary both testified about the interrogation. Detective Lent said the interrogation was an example of "progressive truth telling ... when the interview subject will begin to tell one part of the truth, and then as the interview goes on[,] we'll add other information as he is presented with evidence that we have in, in the case." Detective Lent denied that his statements invoking the death penalty were meant to threaten Hillary with capital punishment and agreed with the State's contention that the detectives never promised Hillary that the State would not seek the death penalty. Detective Lent answered in the negative when asked whether Hillary "ever appear[ed] scared, fearful or threatened by the mention that he could possibly face the death penalty."

For his part, Hillary said the statement was an attempt to avoid capital punishment. "I told them what they wanted to hear because they felt like I need to tell them something to help myself. They didn't want me to tell them the truth." Under cross-examination by the State, Hillary repeated his original story of the haggard man and the fake drugs. Hillary also suggested that the details mentioned by the detectives informed the narrative he gave. "They told me the scenario. They wanted my side of the offense and they...