United States v. Polidore

Citation690 F.3d 705
Decision Date13 August 2012
Docket NumberNo. 09–40896.,09–40896.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Kennedy Paul POLIDORE, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

OPINION TEXT STARTS HERE

Richard John Johnson, Asst. U.S. Atty., Sherman, TX, Michelle Suzanne Englade, Asst. U.S. Atty., Beaumont, TX, for PlaintiffAppellee.

Frank Warren Henderson, Asst. Fed. Pub. Def., Office of the Fed. Def.—Eastern Dist., Frisco, TX, Amy R. Blalock, Fed. Def.'s Office, Tyler, TX, for DefendantAppellant.

Appeals from the United States District Court for the Eastern District of Texas.

Before GARZA, CLEMENT and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

A jury found the defendant, Kennedy Polidore, guilty of possessing crack cocaine with the intent to distribute it. On appeal, Polidore contends that reversible error occurred when portions of two 911 calls were admitted into evidence. For the following reasons, WE AFFIRM.

I

On the night of Polidore's arrest, two anonymous 911 calls made by the same individual alerted the police to possible criminal activity. On the portion of the first 911 call that was played to the jury after other portions of the call had been redacted, the following colloquy took place, which started at 12:15 A.M.

Operator: 911, where is your emergency? Sir, you're phone is cutting out. You called about what?

Caller: All of this drug activity over off Sweetgum?

Operator: What address on Sweetgum?

Caller: I'm not gon—Why would I tell you? I'm trying to be anonymous and get y'all to get these drug dealers from over here.

Operator: Sir, I'm not giving your name out so give me the information so that I can send the officers to the right place, where you're at.

Caller: It's a red PT Cruiser. This guy is selling—

Operator: Sir, give me the address.

Caller: 2505 Sweetgum. All this traffic.

Operator: Did you see his license plate number?

Caller: It's—uh—I know it's a red PT Cruiser. I—I can go back out there and get it, but I don't want him to know that—

Operator: Okay, do you know his name?

Caller: Kennedy Polidore.

Operator: Do you know what kind of drugs he's selling?

Caller: He's selling crack.

Operator: Which apartment is he in right now?

Caller: He don't even live out here. He's just sitting on the steps. He's running in and out, in and out. People coming—

Operator: What's he wearing tonight?

Caller: Ma'am?

Operator: What's he wearing tonight?

Caller: He's got some green shorts on and a white t-shirt. The car is sitting off of—uh—11th, yeah that's 11th, and—uh—Sweetgum.

On the portion of the second 911 that was played to the jury, the following colloquy took place, which began at 12:24 A.M.

Operator: Phone line 911, where is your emergency?

Caller: Hey, I was the one just called about the drug deal that's going down over here on Sweetgum.

Operator: Yes, sir.

Caller: Ok. He's got the dope in the side door panel.

Operator: The dope's in the side door panel?

Caller: Yeah. He—the—

Operator: The right or the left side?

Caller: Uh—of the driver's side—And—but I want them to do it when they leave here 'cause he's for sure got it in the car 'cause he didn't know I was the one called 'cause I the only one seen it.

Operator: Okay, how did you see it sir?

Caller: I seen him put it in there. I can see it right now.

Operator: Okay, I'm adding the information to the call. Thank you, sir.

Caller: Okay. But would you tell them not to do it here? Cause I don't want him to think that I was the one told (inaudible) pulls off going down the street.

Operator: Ok.

Caller: Thank you.

Operator: You're welcome.

The two responding police officers later testified that on the night in question they received a call via radio dispatcher requesting that they respond to the Monterrey Apartments at 2505 Sweetgum in order to look for “a red PT Cruiser in the parking lot with a black male occupying the PT Cruiser who was in the apartment selling narcotics.” When they arrived at the address given by the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied, and had its driver's side window down. Because the dispatcher had informed the officers that the suspect was keeping some of the narcotics inside a compartment on the driver's side of the vehicle, they looked from outside the vehicle and observed what appeared to be three rocks of crack cocaine in plain view.

The officers further testified that a man then approached them, identified himself as the 911 caller, and provided them with some information about the suspect and the PT Cruiser. Believing that the suspect would return to the unoccupied car, the officers devised a plan whereby one would hide behind a nearby fence and the other would drive the patrol unit around the corner. About five minutes later, a black male, dressed in dark-colored shorts and a white t-shirt, exited the apartment complex and entered the PT Cruiser on the driver's side; a female entered the vehicle on the passenger's side. The officer behind the fence alerted the officer in the patrol unit via a call on his cell phone. The officer in the patrol unit returned to the apartment parking lot, activated his emergency lights, and followed the PT Cruiser. Once the officer activated his emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60 to 65 miles per hour before failing to negotiate a turn and ending up in a vacant lot. As he was running up to the vehicle, the officer saw the driver's side door open and the driver stick his arm out and throw something underneath the vehicle. The driver identified himself as Kennedy Polidore and the officer took him into custody. After the officer handcuffed Polidore, he discovered what turned out to be a clear bag of powder cocaine on the driver's side floorboard. The officer also retrieved three rocks of crack cocaine from the same place earlier observed, and once the car was moved by a wrecker, he discovered a clear bag of crack cocaine on the ground where the car previously stood.1 The officers testified that, based on their training and experience, the bag of crack cocaine recovered from underneath the vehicle was a “large amount” and was consistent with distribution purposes.

Polidore was charged by indictment with one count of possession with intent to distribute five grams or more but less than 50 grams of a mixture or substance containing a detectable amount of cocaine base. The Government subsequently filed a notice and information of prior convictions for purposes of increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851. The jury found Polidore guilty as charged. The district court sentenced him to 137 months of imprisonment, to be followed by eight years of supervised release. Polidore filed a timely notice of appeal.

II

On appeal, Polidore claims that the district court erred by admitting the 911 recordings into evidence because the recordings contained testimonial hearsay that violated his Sixth Amendment right to be confronted with the witnesses against him. He asserts that the recordings were prejudicial and extremely harmful to his defense. Polidore alternatively contends that even if the caller's statements were nontestimonial, the district court erred by admitting the 911 recordings because they contained hearsay that did not fall under any of the exceptions to the rule against hearsay.2

A

By proper objection, Polidore preserved his claim of error that the admission of the 911 recordings violated his right to confrontation. Accordingly, we review the alleged violation of the Confrontation Clause de novo, subject to a harmless error analysis. United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004).

The Confrontation Clause of the Sixth Amendment provides that, [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Clause “applies to ‘witnesses' against the accused—in other words, those who ‘bear testimony.’ Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (citation omitted). ‘Testimony,’ in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,’ id. (citation omitted), a description which we have held “includes ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ Brown v. Epps, 686 F.3d 281, 286–87 (5th Cir.2012) (quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354).The Clause's reach is limited to testimonial statements and “in order for testimonial evidence to be admissible, the Sixth Amendment ‘demands what the common law required: unavailability and a prior opportunity for cross-examination.’ Michigan v. Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (2011) (citation omitted).

Although the Supreme Court has declined to “spell out a comprehensive definition of ‘testimonial,’ it has noted that ‘at a minimum’ it includes ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations. Id. (citation omitted) (emphasis added). However, “not all ‘interrogations by law enforcement officers[ ] are subject to the Confrontation Clause.” Id. (internal citation omitted). 3 For instance, the Court has held that “interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator” fall squarely within the definition of testimonial hearsay. Davis, 547 U.S. at 826, 126 S.Ct. 2266. By contrast, the Court has singled out interrogations by 911 operators as a form of interrogation that does not necessarily elicit testimonial statements. Id. at 827, 126 S.Ct. 2266 (“A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e] some past fact,...

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