IL - Hill tape ruled admissible in murder trial

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IL - Hill tape ruled admissible in murder trial

Post  Jennie on Mon Jul 07, 2008 10:33 pm

At a pivotal hearing in the David Damm murder case on June 25, judge William Kelly declared statements by victim Donnisha Hill before her death admissible, and struck down an attempt by the defense to have the death penalty taken off the table.

The hearing also gave prosecutors an opportunity to flesh out the narrative of what may have happened to Hill over the 2 1/2 months preceding her murder, and Damm's alleged ties to the killing.

Assistant Attorney General Vincenzo Chimera walked through the narrative and the evidence they believe supports it in order to convince Kelly that a preponderance of evidence shows that Damm had Hill killed to keep her off the stand. Under the "forfeiture by wrongdoing" principal, if Damm, 60, arranged for the murder of Hill, 13, in order to prevent her from testifying that he sexually abused her, he loses his right to confront the witness at trial. This means that a video interview with Hill from before her death would be admissible as evidence.

According to Chimera, Hill and Damm had a sexual relationship beginning in August, 2006. Hill told one of her friends that she had oral sex with the defendant, and on Oct. 12, her mother found Hill with a semen-stained napkin. The napkin was immediately placed in a plastic bag, and handed over to the police for DNA testing. The lab said they could have results in 2 months.

Over the next two weeks, Waterloo police kept Damm abreast of the pending charges against him. On Oct. 24, an officer told Damm he was being accused of oral and digital sexual abuse. 2 days later, Bruce Burt says that Damm contacted him, and hired him to carry out the murder.

According to phone records, two calls were placed from Hill's friend's home to Damm's residence on Oct. 26, the night before Hill was murdered. Prosecutors say that Hill called Damm from her friend's house, then told her friend she was going to meet him the following day. Damm picked Hill up from a school bus stop, and was seen with her before she disappeared. Burt claims that Damm met him afterward at a local McDonald's, and the two then drove in separate cars to a motel, where Damm handed Hill over. Burt says Damm told him that Hill thought she was going to Chicago, where Damm would meet her later.

Burt said that Hill was calm and quiet during the car ride, and listened to the radio while Burt drank a beer and called his girlfriend. They headed north at first, before Burt changed his mind and began to drive south, and then east. Burt didn't want to kill the girl in broad daylight, so he kept driving until after sunset, crossing the state line and ending up in a field near Hanover.

He then beat her to death with a hammer and slit her throat. Her body was found the following day by the property's owner, and police notified Hill's family that the body matched her description the day after.

Burt told police that Damm came by his house the day after the murder to deliver payment. Prosecutors claim that his statement is corroborated by a neighbor who saw Damm's van outside the house that afternoon, and by an employee of Damm's. The employee allegedly said Damm asked him to reach up into the ceiling of the office and remove an envelope containing $1,600 from one of the tiles for him. Burt's total payment for the crime was $2,000.

On Oct. 30, Burt was taken into police custody and charged with the murder, and Damm was taken into custody for an unrelated parole violation. Hill's mother told the Waterloo-Cedar Falls Courier in the days after Hill's disappearance that she believed an older man her daughter had been seeing was involved, though she did not disclose his name at the time.

Prosecutors struck a bargain with Burt, taking the death penalty off the table for him if he would assist in prosecuting Damm. Charges against Damm were filed on Nov. 14, 2006.

In his statements to police, Burt said Damm mentioned the DNA sample when explaining why he wanted Hill dead. Chimera read a passage of the police interview to the court, in which Burt recalled Damm saying, "If she could just disappear, something about, she had DNA, something that wouldn't come back until December...He didn't want to take a chance."

Burt's statement was a crucial factor in the prosecution's case. The very morning of the hearing, the United States Supreme Court ruled that in order to admit the testimony of a murder victim, the prosecution must prove that the accused had the explicit intent to prevent that victim from testifying at trial. In the Giles vs California case, the supreme court overturned the conviction of Dwayne Giles because prosecutors failed to show that he shot his girlfriend to keep her off the stand, rather than as a part of their relationship's abusive pattern, or as an act of self-defense.

The prosecution therefore needed to show that the majority of the evidence indicates not only that Damm had Hill murdered, but that his intent was to keep her from testifying about their sexual relationship.

Chimera told the court that all of the witnesses who corroborate Burt's version of events make him convincing. "All of that shows, your honor, why Bruce Burt is believable, that Bruce Burt did have this conversation with the defendant, and that his recollection of events is pretty good," he said.

The defense, represented by attorney Stephen Richards, responded that all of Burt's statements are unreliable.

"This guy was a crack addict on a 5-day high, virtually awake all the time, taking cocaine from moment to moment," he said.

"If Bruce Burt was a boat headed to port, and every point against his credibility was a stone loaded into his hull, he would sink," said Richards. "He's a crack addict. He's a criminal. He has every need to embellish, to make it better and embroider the case against David Damm."

Richards added that Burt could have heard about the DNA evidence, which came back as a possible match, from any number of sources in Waterloo, where Bruce, Damm and Hill all lived. According to Richards, rumors about Hill and Damm were rampant throughout the town.

He also argued that the sex abuse accusations against Damm should only be used to establish a motive, and none of Hill's testimony before her death is necessary to do that.

"The problem, I think, is that the accusation is enough to make a motive, whether or not it's true or false," he said.

If the video and all of Hill's statements to friends and family were admitted, Richards claimed, "(The jury) will convict David Damm because they will believe, even if they think he had nothing to do with this murder, that he was a child abuser, the worst thing he could be."

But prosecutors believe that the sexual relationship is such an integral part of the murder case that everything should be admissible. "The jury needs to hear it all," said Chimera. "They need to see the relationship develop from beginning to end."

Kelly's ruling came down between the 2 sides, finding that Hill's direct statements were admissible, but the testimony of her friends and family about things she told them was not.

"This is not a case where the defendant took the life of the decedent because he was angry or something else," Kelly said. "Everything set out in this proffer is very consistent." He therefore concluded that the prosecution met the new, stringent requirements laid out by the Giles vs. California case for forfeiture by wrongdoing.

However, he decided that hearsay was a different matter than the defendant's right to confront the witness, so forfeiture did not apply to secondhand statements.

The court then turned to the defense's attempt to get the death penalty off the table. Attorney Allan Sincox, a member of the defense team, argued that the death penalty was arbitrary in this case, and therefore cruel and unusual punishment, because it was essentially random that Hill was killed in Illinois. Neither Iowa nor Wisconsin practices the death penalty. There is currently a moratorium on the death penalty in Illinois, but Damm could be executed if the ban is ever lifted.

Sincox pointed to Burt's initial course headed north, then his decision to turn south, as evidence of the case's arbitrary nature.

"The sole reason this is a death penalty case is because Bruce Burt managed to drive fast enough to get over the border to Illinois," Sincox said, adding that if Burt had stopped to eat, Damm would be tried in Iowa, and safe from capital punishment.

"The reason why the defendant sits at that table today facing the death penalty is because of the decisions that he made and the actions that he took," responded prosecutor Steven Nate. "That man was sexually molesting Donnisha Hill, so he had to have her murdered."

The 2 sides debated whether Damm's statement that Hill thought she was headed for Chicago had any influence on Burt, who started out the trip going away from the route that would lead to Chicago.

Before Sincox concluded, Kelly asked him whether he was contesting Illinois' jurisdiction in the case. Sincox replied that he had reviewed the case law, and felt there was a strong precedent for holding the trial here.

Kelly summarily denied the motion.

Damm's next hearing is scheduled for Aug. 8, with a jury trial slated for Sept. 15. The trial was initially scheduled for September 2007, but has been pushed back several times.

(source: Galena Gazette, July 1)
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Jennie
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