State v. Kirkland

283 A.3d 974

STATE of Vermont

v.Hieheem KIRKLAND

SUPREME COURT DOCKET NO. 22-AP-173

Supreme Court of Vermont.

August Term, 2022

August 9, 2022

ENTRY ORDER

¶ 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 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 presented: that defendant represented himself to be his girlfriend on Facebook Messenger and that the firearm found in the car matched the description of the one used by the shooter. Defendant does not challenge the court's refusal to impose bail or grant discretionary release under conditions and thus our review of the trial court's order will be limited to these issues.

¶ 9. Under 13 V.S.A. § 7553, a person may be held without bail if they are "charged with an offense punishable by life imprisonment" and "the evidence of guilt is great." If these requirements are satisfied, "a presumption against release arises"; nevertheless, the trial court must exercise its discretion to determine whether to impose bail and conditions of release. State v. Blow, 2020 VT 106, ¶ 3, 213 Vt. 651, 251 A.3d 517 (mem.). In making this determination, the trial court "may look to the factors in 13 V.S.A. § 7554(b) to assess whether conditions of release can be imposed that mitigate the risk of flight and ensure the safety of the public." State v. Waterman, 2022 VT 1, ¶ 20, ––– Vt. ––––, 273 A.3d 634 (mem.).

¶ 10. The sole issue on appeal is whether the evidence of defendant's guilt is great. On appeal, we "independently determine[ ]" whether this standard has been satisfied.³ State v. Orost, 2017 VT 110, ¶ 5, 206 Vt. 657, 179 A.3d 763 (mem.). The evidence of guilt is great when "substantial, admissible evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt." State v. Avgoustov, 2006 VT 90, ¶ 2, 180 Vt. 595, 907 A.2d 1185 (mem.). The State may meet its burden with "affidavits, depositions, sworn oral testimony, or other admissible evidence." State v. Duff, 151 Vt. 433, 439-40, 563 A.2d 258, 263 (1989) (adopting standard in Vermont Rule of Criminal Procedure 12(d) to weigh evidence of guilt under § 7553 ). Modifying evidence to be excluded includes "testimonial evidence introduced by the defense in contravention to the State's evidence, the credibility or weight of which is ultimately for the factfinder's determination" and certain types of "nontestimonial evidence," the validity of which is subject to dispute such that it "raises a factual question ... that must be left for the jury at trial." State v. Stolte, 2012 VT 12, ¶¶ 11, 14, 191 Vt. 600, 44 A.3d 166 (mem.).

¶ 11. The admissible evidence presented below, excluding any modifying evidence, is sufficient to convince a factfinder beyond a reasonable doubt that defendant was the shooter. First, the State has an eyewitness identification of defendant as the shooter in complainant's sworn statement. Although defendant argues that complainant's identification lacks distinctive or specific reasons to support its veracity, these arguments go to complainant's credibility and are not properly considered at this type of proceeding. See State v. Breer, 2016 VT 120, ¶ 11, 203 Vt. 649, 160 A.3d 318 (mem.) (stating modifying evidence is excluded "to avoid judicial decisions on credibility at bail hearings"). Moreover, the extent to which the shooter's mask might have obscured complainant's ability to see and identify defendant is modifying evidence that we cannot consider. See State v. Turnbaugh, 174 Vt. 532, 534, 811 A.2d 662, 665 (2002) (mem.) ("Direct conflicts between inculpatory or exculpatory facts cannot be resolved at this stage. Such matters must await jury determination at trial."). Contrary to defendant's arguments, complainant's identification is not devoid of support—he alleged he knew the shooter to be defendant because he had seen defendant in the past and the shooter matched what he knew defendant to look like. Complainant also stated that he arranged via Facebook Messenger to meet with defendant's girlfriend at the northwest corner of the University Mall parking lot. When complaina...