By RANDALL CHASE, Associate Press
DOVER, Del. (AP) — A former Delaware police officer charged with evidence tampering and lying to investigators in connection with his shooting and wounding of a carjacking suspect has lost a bid to dismiss the case.
A Superior Court judge on Friday refused to dismiss the indictment against former Wilmington police officer James MacColl, or to exclude statements he made in internal affairs interviews after the 2019 shooting.
MacColl is charged with felony counts of tampering with physical evidence and making a false statement to law enforcement, and a misdemeanor charge of official misconduct.
Prosecutors claim MacColl changed the barrel of his department-issued handgun sometime after shooting 18-year-old Yahim Harris in February 2019. Harris was shot several times while running from a stolen car. He survived his injuries and sued Wilmington police, claiming they used excessive force and violated his rights “after he alighted from the vehicle, helpless, unarmed, and non-threatening.”
The lawsuit was settled earlier this year.
The indictment alleges that MacColl, knowing his gun would be confiscated by investigators, reinstalled the factory barrel and then lied about modifying the handgun without authorization.
MacColl argued that, under a 1967 US Supreme Court ruling, the state is prohibited from prosecuting him for statements he made during internal affairs interviews because he made them under penalty of termination. He also argued that forms he signed before the interviews explained that any “admissions” he made would not be used in any subsequent criminal proceeding. The defense also argued that any incriminating statements in the internal affairs files are protected from disclosure by Delaware’s Law Enforcement Officers’ Bill of Rights, or LEOBOR.
Superior Court Judge Charles Butler rejected those arguments, noting that the Supreme Court ruling protects only truthful statements made by police officers under penalty of termination. The judge also refused to accept MacColl’s argument that any statement he made in the interviews should be inadmissible.
“MacColl’s statements are not admissions,” Butler wrote. “… Admissions acknowledge the truth. MacColl’s statements are allegedly false.”
Butler also said MacColl, who was terminated from the police force for an unrelated violation, lacked standing to bring his LEOBOR claim.
MacColl argued that LEOBOR prevents prosecutors from requesting, and the police department from disclosing, internal affairs files.
Butler noted that LEOBOR rights apply only to police disciplinary proceedings, and that MacColl directed his LEOBOR claim against prosecutors who subpoenaed the internal affairs files, not the police department.
“Notably, he did not sue WPD for wrongful termination or for violating LEOBOR’s disciplinary procedures,” the judge wrote.
“A ruling that excludes evidence or dismisses an indictment in a criminal case due to a LEOBOR violation would grant a law enforcement officer immunities afforded no other class of citizens anywhere,” Butler added.
The Delaware Department of Justice cleared MacColl of any criminal wrongdoing for using deadly force against Harris. A report issued in November 2019 noted police had been told by a dispatcher that the carjacking suspects were armed, and that MacColl did not fire his weapon until Harris, who had been driving the stolen vehicle, turned toward him and extended his arm while holding a black object in his hand.
While being questioned by police after the shooting, Harris denied being the driver of the vehicle and said he ran because he was on probation at the time. He also told investigators he had a cellphone in his hand as he ran and denied hearing any commands from MacColl.
MacColl told investigators that while officers were rendering first aid to Harris, he asked “Why did you shoot me? I didn’t have the gun anymore.”
Investigators found that MacColl’s recollection of events was corroborated by surveillance video and medical records of the injuries to Harris. They also noted that a handgun was found underneath the passenger side of the stolen vehicle. A juvenile who was a passenger in the car was later found delinquent in Family Court for possession of a firearm by a prohibited juvenile.
A ballistics report issued about two weeks after the shooting matched spent shell casings at the scene to MacColl’s handgun but found that markings on the bullets recovered at the scene did not match the rifling of the barrel on the weapon MacColl turned in.
Authorities have said MacColl previously admitted replacing the standard issue barrel on his gun with an aftermarket barrel in 2017 to improve his firing accuracy, but that he denied switching barrels after shooting Harris.
Prosecutors dropped charges against Harris in March 2020, noting that MacColl’s “total lack of candor” during the shooting investigation called into question his credibility as a witness.
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