431 F.3d 484 (6th Cir. 2005), 03-5838, United States v. Hadley

Docket Nº:03-5838.
Citation:431 F.3d 484
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jerome HADLEY, Defendant-Appellant.
Case Date:December 06, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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431 F.3d 484 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Jerome HADLEY, Defendant-Appellant.

No. 03-5838.

United States Court of Appeals, Sixth Circuit.

December 6, 2005

Submitted: Aug. 4, 2004.

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga, No. 02-00147—Curtis L. Collier, Chief District Judge.

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[Copyrighted Material Omitted]

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Frederick Lee Ortwein, ORTWEIN & ORTWEIN, Chattanooga, Tennessee, for Appellant.

Tammy Owens Combs, Steven S. Neff, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.

Before: SUTTON and COOK, Circuit Judges; ROSEN, District Judge.[*]


ROSEN, District Judge.


Defendant/Appellant Jerome Hadley was charged in a single-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was found guilty by a jury following a two-day trial, and was sentenced to a 262-month term of imprisonment, a sentence at the bottom of the applicable guideline range. Defendant now appeals his conviction and sentence, challenging two of the district court's evidentiary rulings at trial, and also contending that the district court erred at sentencing by relying on uncorroborated hearsay to make a factual finding that increased his sentencing range. In addition, Defendant argues that he is entitled to resentencing under the rule announced in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), and under this Court's post-Booker decisions. We affirm Defendant's conviction, but vacate his sentence and remand for resentencing under the advisory regime that now governs federal sentencing in the wake of Booker.


A. The Events Leading to Defendant's Arrest

In the evening and early morning hours of May 24 and 25, 2002, Defendant Jerome

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Hadley and his wife, Pattia Hadley, were hosting a few friends and relatives at their residence on North Moore Road in Chattanooga, Tennessee. At around midnight, Mrs. Hadley's friend, Yvette, telephoned 911 from the Hadley residence. This call triggered a police dispatch for an assault in progress, and Chattanooga Police Officer Tyrone Williams heard the dispatch and proceeded to the home. The dispatcher further advised Officer Williams that the 911 call was on an "open line," meaning that the caller was at the scene of the altercation and the 911 operator could hear the incident in progress over the telephone. As Officer Williams drove to the scene, the dispatcher told him that a second 911 call had been received, with the caller urging the police to "hurry up." (11/12/2002 Trial Tr. at 6-7, J.A. at 28-29.)

While driving in her squad car, Chattanooga Police Officer Alicia Jenkins also heard a 911 dispatch for a "domestic disturbance with a gun" at the Hadley residence. Officer Jenkins testified that the dispatch was classified as "Priority 1," meaning that an immediate response was necessary. ( Id. at 28, J.A. at 41.) Officers Williams and Jenkins arrived at the Hadley residence at about the same time, with Officer Williams estimating that he reached the scene within about two minutes of receiving the initial dispatch.

Both officers testified at trial that upon arriving at the scene, they immediately observed Mrs. Hadley run out of the front door of her home, appearing "hysterical" and "in a state of panic." ( Id. at 7, 28-29, J.A. at 29, 41-42.) According to the officers, Mrs. Hadley yelled that "he has a gun" and "he's going to kill me." ( Id. at 7-8, 30, J.A. at 29-30, 43.) Officer Jenkins further recalled Mrs. Hadley stating that "he put a gun up to her head." ( Id. at 30, J.A. at 43.) In the officers' view, Mrs. Hadley appeared to be visibly upset as she made these remarks; in particular, they recalled that she was "crying," "shaking," and "weeping" at the time, and that she generally lacked "any control of her emotions." ( Id. at 7, 29-30, J.A. at 29, 42-43.)

After this initial encounter with Mrs. Hadley, Officer Williams entered the residence, identified Defendant Hadley as one of the individuals standing in the dining room area, and asked Defendant about the events in his home that night. Defendant did not respond to the officer's inquiries, but instead challenged the officer's basis for entering his home. When asked whether there was a firearm in the residence, Defendant said, "No. I don't know what you're talking about." ( Id. at 9, J.A. at 31.) At this point, Officer Williams did a pat-down search of Defendant, left him in the custody of another officer, and went back outside to speak with Mrs. Hadley.

Through their discussion with Mrs. Hadley, Officers Williams and Jenkins learned that there was a gun in the Hadleys' bedroom. The officers then re-entered the house, proceeded to the bedroom, and observed a gun holster on the bedroom floor. Apart from this discovery, however, a limited search of the room failed to uncover any weapons. Accordingly, the officers went back outside to seek further assistance from Mrs. Hadley.

After speaking to Mrs. Hadley for a few more minutes, the officers requested that she accompany them into the house to show them where the gun was located. According to Officer Williams, Mrs. Hadley initially resisted this request, appearing "very frantic [and] very frightened," and stating "that she did not want to come back in the house because she was afraid of what he was going to do to her." ( Id. at 13, J.A. at 34.) After the officers assured her that she would be safe and that Defendant was being kept "off to the side . . . where he could not come after her," Mrs.

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Hadley agreed to come back into her house. ( Id. )

Once inside the home, Mrs. Hadley led the officers into the bedroom, proceeded directly to an armoire, opened one of its drawers, and pointed inside, stating "There it is." ( Id. at 13-14, 34, J.A. at 34-35, 45.) The officers looked in the drawer and discovered a loaded .38 caliber revolver. While another officer escorted Mrs. Hadley back outside, Officer Williams picked up the gun, unloaded five bullets from the weapon, and placed the firearm and ammunition in his patrol car.

After securing the gun, Officer Johnson returned to the house, took Defendant into custody, and placed him in a police car. Officer Johnson then re-entered the residence with Mrs. Hadley, and he and Officer Jenkins asked her to provide a written statement. The officers testified that Mrs. Hadley was "still shaking, "trembling," and "very hysterical," but that they eventually were able to calm her down and obtain a written statement. ( Id. at 15, 37, J.A. at 36, 46.) In this statement, Mrs. Hadley wrote that Defendant had "[p]ush[ed] me into the room and would not let [me] out," and that "he held a gun to my head and said he was going to kill me." (5/25/2002 Domestic Violence Victim/Suspect Statement, J.A. at 11.) Mrs. Hadley further stated that "he said he would kill everyone in the room if I left the house [and] he would shoot in my head." ( Id. )

Following his arrest, Defendant was charged with the state-law offense of aggravated assault, but this charge subsequently was dismissed. On September 25, 2002, a federal grand jury returned an indictment in the present case, charging Defendant with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

B. The Trial Proceedings and Challenged Evidentiary Rulings

The case proceeded to trial on November 12 and 13, 2002. The Government called Officer Williams as a witness, and sought through his testimony to introduce Mrs. Hadley's statements that ";[h]e has a gun" and "[h]e's going to kill me." Defense counsel objected that this testimony was inadmissible hearsay, but the Government asserted that Mrs. Hadley's statements were admissible under Fed.R.Evid. 803(2) as excited utterances. In response, defense counsel argued that "the incident was [not] going on at that time," so that Mrs. Hadley's statements did not qualify as excited utterances. (11/12/2002 Trial Tr. at 8, J.A. at 30.) The district court overruled Defendant's objection and admitted Officer Williams' testimony without elaboration or explanation. Similarly, the district court overruled Defendant's hearsay objection to Officer Williams' testimony that Mrs. Hadley stated her unwillingness to go back inside her house "because she was afraid of what he was going to do to her." ( Id. at 13, J.A. at 34.)1

The Government also called Officer Jenkins as a witness. Again, when Officer Jenkins sought to testify regarding Mrs.

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Hadley's statements when she first emerged from her home, Defendant objected on hearsay grounds, but the district court overruled the objection. The court later sustained Defendant's objection, however, to the proposed admission of the written statement prepared by Mrs. Hadley after her husband was taken into custody.

The Government then called Ronald Locke, a Hamilton County sheriff's deputy at the county jail where Defendant was incarcerated before trial. Through this witness, the Government sought to introduce audiotape recordings of two telephone calls purportedly made by Defendant from the jail, one to his girlfriend and one to Mrs. Hadley. When asked how he was able to identify Defendant as one of the speakers on these recordings, Deputy Locke initially explained that he had spoken to Defendant for about 30 minutes at the jail without defense counsel being present.

At this point, Defendant lodged a number of objections to the admission of the recorded telephone conversations. First, Defendant argued that Deputy Locke's ability to identify his voice rested upon an impermissible interrogation outside the presence of his attorney, in violation of his Sixth Amendment right to counsel. Absent a proper basis for identifying him as the speaker, Defendant contended that any...

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