United States v. Harry

• Decision Date: 13 May 2013
• Docket Number: No. CR 10–1915 JB.,CR 10–1915 JB.
• Citation: 927 F.Supp.2d 1185
• Parties: UNITED STATES of America, Plaintiff, v. Myron HARRY, Defendant.
• Court: U.S. District Court — District of New Mexico

927 F.Supp.2d 1185

UNITED STATES of America, Plaintiff,

v.Myron HARRY, Defendant.

No. CR 10–1915 JB.

United States District Court,

D. New Mexico.

Feb. 19, 2013.

As Amended May 13, 2013.

Kenneth J. Gonzales, United States Attorney, Kyle T. Nayback, David Adams, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

John F. Samore, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75) (“Motion to Suppress”). The Court held an evidentiary hearing on September 19, 2012. The primary issues are: (i) whether the Court should suppress the text messages that Defendant Myron Harry sent to Dimitri Wauneka on May 6, 2011, because Plaintiff United States of America failed to preserve Wauneka's outgoing text messages to Harry; (ii) whether the Court should prohibit the United States from using at trial the text messages from Harry at trial because their prejudicial effect substantially outweighs their probative value; and (iii) whether the Court should prohibit the United States from using at trial the text messages from Harry because they are impermissible character evidence. The Court determines that Wauneka's outgoing text messages had a potentially useful value, at best, and that the United States did not fail to preserve them in bad faith, and, thus, the United States' failure to preserve Wauneka's outgoing text messages did not violate Harry's due-process rights. The Court further concludes that, because Wauneka's outgoing messages are not likely to have determined Harry's innocence, the absence of the outgoing messages will not render Harry's trial unfair. The Court also concludes that the prejudicial effect of the text messages from Harry is not so great as to outweigh the probative value of the messages as demonstrative of Harry's state of mind immediately after the alleged assault of Jane Doe. Lastly, the Court concludes that the text messages from Harry are not impermissible character evidence, and, even if the text messages are indicative of Harry's character, the United States may use the messages to prove Harry's state of mind immediately after the alleged assault, as the United States seeks to do. The Court, thus, denies the Motion to Suppress.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. SeeFed.R.Crim.P. 12(d) ( “When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. SeeFed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir.2009)(unpublished) ² (“We need not resolve whether Crawford[ v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]'s ³ protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ ”), cert. denied,558 U.S. 890, 130 S.Ct. 223, 175 L.Ed.2d 154 (2009); United States v. Merritt, 695 F.2d at 1269;United States v. Christy, 810 F.Supp.2d 1219, 1223 (D.N.M.2011)(Browning, J.)(“Thus, the Court may consider hearsay in ruling on a motion to suppress.”); United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011)(Browning, J.)(concluding “that Crawford v. Washington does not apply to detention hearings”).

1. On May 5, 2010, a group of young people, including Jane Doe and Harry, attended a birthday party at the home of Stephanie Johnson and Wauneka in Shiprock, New Mexico. See Transcript of Hearing, taken Sept. 19, 2012 at 22:16–23:14 (Adams, Joe) (“Tr.”).⁴ (Navajo Nation Criminal Investigator Jefferson Joe testifying that he was informed by Jane Doe that, on the evening of May 5, 2010, Harry attended a birthday party for Jane Doe at the home of Johnson and Wauneka in Shiprock, New Mexico. Jane Doe informed Joe that the party lasted into the morning of May 6, 2010.) There were between nine and twelve guests at the party. See id. at 69:7–8 (Nayback, Wauneka); id. at 95:7–8 (Adams, Johnson)(Wauneka states that there were “about” nine guests at the party; Johnson states that she believes there were twelve guests at the party).⁵ All guests at the party were close friends of Wauneka's. Harry was one of Wauneka's “best friends” at the time. Id. at 69:7–17 (Nayback, Wauneka)(Nayback: “Q did you know [Harry] at the time?” A: “He was one of my friends, best friends.”). All the guests at the party, except for Johnson, consumed a large amount of alcohol. See id. at 86:5–7 (Samore, Wauneka)(Q: “Pretty large amounts of alcohol consumed by everyone except Stephanie, right?” A: “Yes.”).

2. Wauneka was very drunk at the party. See Tr. at 86:12–13 (Wauneka).

3. The attendees at the party decided, between 1:00 a.m. and 2:00 a.m. on May 6, 2010, that the remaining female guests would sleep in one of the two bedrooms of the home, an apartment, and the remaining male guests would sleep in the living room. See id. at 70:14–24 (Nayback, Wauneka); id. 95:24–25 (Adams, Johnson).

4. Johnson awoke around 5:00 a.m. and found Harry awake. See id. at 96:9–10 (Adams, Johnson)(Q: “[Did] you wake up at any point in the evening?” A: “Yes. I believe it was around five.”); id. at 98:3–12 (Johnson)(“I was walking straight to my room ..., I turned the light back on and that's when Myron was standing there....”). Other female guests at the party were also awake and were accusing Harry of assaulting Jane Doe. See Tr. at 99: 11–16 (Johnson)(“So Joe had Myron's keys, and when he came back in that's when, you know, everybody was accusing ... [of] taking advantage of [Jane Doe].”). Harry left quickly thereafter. See id. at 98:1–25 (Johnson); id. at 99:11–16 (Johnson). Wauneka awoke to yelling. See id. at 75:2–5 (Nayback, Wauneka) (Q: “[Y]ou woke up to screaming[,] yelling and fighting; is that right?” A: “Yes.”). Other guests at the house told Wauneka that Harry assaulted Jane Doe. See id. at 75:20–8 (Nayback, Wauneka).

5. Wauneka texted Harry between 5:00 a.m. and 7:00 a.m. on May 6, 2010 regarding the incident. See Tr. at 76:9–11 (Nayback, Wauneka)(A: “I texted Myron and asked him what happened.”); Government Exhibit S10 ⁶ (indicating that he exchanged text messages with Harry between 5:00 a.m. and 7:00 a.m. on May 6, 2010).

6. Wauneka asked about the alleged assault on Jane Doe. See Tr. at 101:3–18 (Johnson, Adams); id. at 102:5–8 (Johnson)(Johnson testifying that she could see some of Wauneka's outgoing text messages to Harry and that messages were asking Harry about the alleged assault on Jane Doe).

7. Wauneka may have sent less than eight text messages to Harry on the morning of May 6, 2010. See Tr. at 81:9–16 (Nayback, Wauneka)(Q: “[D]o you know if you sent one text for every text you received? There were eight text messages that you receive[d].” A: “I don't really remember. I think it might have been less maybe.” Q: “Might have been less?” A: “Yes less.”).

8. Wauneka and Harry did not correspond via text messaging regarding anything except the alleged assault on the morning of May 6, 2010. See id. at 79:21–80:3 (Nayback, Wauneka)(Q: “You were asking him about what happened, correct?” A: “Yes.” Q: “Were there any texts that you had that morning with Myron that were about some other subject matter?” A: “No.”)

9. Johnson saw Wauneka texting Harry and had the opportunity to look at Wauneka's cellular telephone's screen while Wauneka was texting Harry. See id. at 82:14–83:6 (Nayback, Wauneka)(Wauneka responding to the United States' question whether Johnson had the “opportunity to look at your cell phone screen” while he texted Harry, “Yes. She wanted to know what was going on, also”).

10. Wauneka showed Johnson every text message which he sent to Harry that morning. See id. at 82:14–83:6 (Nayback, Wauneka); Tr. at 88:4–12 (Samore, Wauneka)(Q: “And are you telling this court you were also showing her each of the things you were sending to him?” A: “Yes.” Q: “Every single one?” A: “Yes.”).

11. Johnson read one of Harry's text messages to Wauneka, in which Harry stated that he would accept charges for what he had done, but Johnson did not see the exact wording of any other text messages exchanged between Wauneka and Harry. See Tr. at 105:3–18 (Johnson, Samore)(A: “I did see the one where it says ‘I will take the charges.’ ” Q: “And that's the only one you saw?” A: “Yes.” Q: “And you didn't see any of the exact wording what Dimitri was sending to my client, did you?” A: “Well, no, I don't—” Q: “Other than what you've said?” A: “Yes.”).

12. Neither Joe, nor Louis St. Germaine, a criminal investigator for the Navajo Nation, were working alongside the United States, either with Federal Bureau of Investigation (“FBI”) agents, or with United...