Milton shooting suspect attorney aims to suppress evidence

It's been nearly two years since Milton resident Marlon Martinez-Hernandez, then 14, mumbled through a bloody lip that a man in a mask, who sounded like his brother's best friend, Macho, shot him and his brother as they sat in a car outside their apartment.

Now the defense attorney representing the suspected shooter, Carlos Juan “Macho” Feliciano-Concepcion, is questioning the admissibility of that information, told to Milton Police Department Lt. Derrick Harvey the night of the crime. Attorney Stephen Welsh said the information relayed to Harvey is unreliable hearsay with no supporting recordings or documents to back it up.

During a suppression hearing in Sussex County Superior Court June 20, Welsh grilled Harvey and several state police troopers about whether they had used their in-car cameras, microphones or body cameras when responding to the crime scene, attempting to show Judge Richard F. Stokes that on-scene officers provided no supporting evidence for Harvey's testimony that Marlon had identified Macho as the suspected shooter.

Throughout the hours-long hearing, it was revealed that some officers had recorded the shooting scene, but that evidence was not preserved.

“I've been told Delaware State Police have gotten better training in the last two years,” said Deputy Attorney General Melanie Withers. She explained that because the call came in to Milton police, when state troopers arrived, they weren't sure how to code video shot from their vehicles. Because videos were not coded as criminal – a designation that saves recordings for two years – everything was erased after 45 days.

“Possibly, we had six videos, six audio, but we don't anymore,” she said. Welsh argued that someone should have made sure those recordings were preserved.

Harvey testified that when he responded to the scene nearly two years ago, he did not turn on his patrol vehicle lights, which would have activated the camera, because he thought he was responding to fireworks, as is usually the case when a shots-fired complaint is received in Milton. He also did not have his microphone on his uniform, because he carries his K-9 vehicle release button in its place. He also said he was not wearing a body camera because he wasn't quite sure how to work it.

“I really just didn't expect that kind of thing to happen in Milton,” he said, noting that he lives directly across the street from where the shooting occurred.

During the hearing, Harvey recounted what happened Nov. 24, 2014. Shortly before 3 a.m., Harvey was drying off at the police station after being soaked by heavy rain while investigating a car break-in reported around 1 a.m. He received a call that multiple shots had been fired in the area of Luther Towers on Palmer Street, not far from the Betts Street residence where he had been investigating.

He headed out in his patrol vehicle and circled around the neighboring apartment complex, Park Royal Apartments. After a few minutes of driving in the rain, he found a vehicle parked in the complex's south parking lot, sitting in the dark with a door propped open.

“Once I got to the back of the vehicle, I heard a sound,” Harvey testified. “I looked and saw what looked like blood on the window. The driver was making a snoring sound, and his eyes rolled back. … The passenger said, 'Help me, help me.'”

Through a small, bleeding hole in his lip, Marlon told Harvey his name, said he couldn't move, and that the man with a gunshot wound to his head, sitting in the driver's seat, was his older brother, 20-year-old Rogelio “Chico” Martinez-Hernandez.

“I asked what happened, and he said somebody came up in a mask and shot him,” Harvey testified. “I asked if he knew who did it. He said, very sternly it seemed to me, it was Macho. I had to ask again because it was hard to understand him.”

Harvey radioed for police back-up and EMS as he tried to decipher whether Marlon had said Macho or Camacho. In the dark, he quickly searched the immediate area to make sure it was clear and safe, because he did not know where the shooter might be, he said.

“I was extremely concerned, not only for his safety, but for mine as well,” Harvey said. Waiting for state police to arrive – “It seemed like forever,” he said – Harvey grabbed his notebook from his patrol car and tried to get what information he could from Marlon, while also trying to keep the teen distracted from the gurgling sounds and seizures of his fatally wounded brother.

Four or five back-up troopers arrived in about 10 minutes, Harvey said, and about five minutes later, the ambulance arrived. Both victims were taken to a local hospital, where Rogelio was pronounced dead, and Marlon, who was paralyzed from his neck down, was treated for multiple gunshot wounds.

Feliciano-Concepcion was identified as a suspect based on the information provided by Marlon, as well as a police interview with the suspect’s brother, who said the suspect went searching for the person who had broken their car window and stolen a speaker – the complaint that Harvey had investigated just before responding to the shooting. Delaware State Police Detective Jonathan King testified in January 2015 that the suspect's brother, Juan Feliciano, told police Feliciano-Concepcion admitted to him that he had shot Rogelio and his little brother and then buried the gun.

Feliciano-Concepcion was arrested Dec. 4, 2014, and is charged with first-degree murder, first-degree attempted murder, two counts of possession of a firearm during the commission of a felony and wearing a disguise during the commission of a felony. He is being held at Sussex Correctional Institution on a $300,000 cash-only bail for the murder charge, a $100,000 cash-only bail for the attempted murder charge and a $75,000 secured bail for the other charges.

During the June 20 hearing, it was also revealed that at least two of the responding state police officers did not file police reports until being informed they might have to testify at a suppression hearing. Judge Richard F. Stokes is expected to provide a written decision on the request for suppression, Withers said, but no timeline has been set.

Feliciano-Concepcion is expected to go to trial in September.