U.S. v. Mayhew

• Decision Date: 05 August 2005
• Docket Number: No. 2:03-cr-165.,2:03-cr-165.
• Citation: 380 F.Supp.2d 961
• Parties: UNITED STATES of America, Plaintiff, v. John Richard MAYHEW, Jr., Defendant.
• Court: U.S. District Court — Southern District of Ohio

380 F.Supp.2d 961

UNITED STATES of America, Plaintiff, v. John Richard MAYHEW, Jr., Defendant.

No. 2:03-cr-165.

United States District Court, S.D. Ohio, Eastern Division.

August 5, 2005.

COPYRIGHT MATERIAL OMITTED

David DeVillers, United States Attorney, Salvador A. Dominguez, U.S. Attorney's Office, Columbus, OH, for Plaintiff.

Frederick Douglas Benton, Isiah Gant, Nashville, TN, Steven Scott Nolder, Federal Public Defender, Columbus, OH, for Defendant.

OPINION AND ORDER REGARDING DEFENDANT'S MOTIONS IN LIMINE TO EXCLUDE WRITTEN AND ORAL STATEMENTS

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's Motions in Limine to Exclude Kristina McKibben's Oral Statement, Kristina McKibben's Written Statements Made On or After August 7, 2003, and Kristina McKibben's Written Statements Made Before August 7, 2003. For the reasons stated herein, the Court DENIES Defendant's Motion in Limine to Exclude Kristina McKibben's Oral Statement [Docket No. 39]; the Court GRANTS in part and finds MOOT in part Defendant's Motion in Limine to Exclude Kristina McKibben's Written Statements Made On or After August 7, 2003 [Docket No. 84]; (3) the Court GRANTS in part and DENIES in part Defendant's Motion in Limine to Exclude Kristina McKibben's Written Statements Made Before August 7, 2003 [Docket No. 135].

II. FACTS

The essential facts, as alleged by the government, are as follows. On the night of August 7, 2003, Defendant went to a home at 2258 Springmont Avenue, Columbus, Ohio, where he shot and killed his ex-girlfriend, Tamara McKibben, and her fiance, Frank Rigsby. Defendant then kidnapped his and Tamara McKibben's daughter, Kristina McKibben, from the home. Defendant took Kristina McKibben with him in his car and drove with her to West Virginia. On August 9, 2003, Defendant, still with Kristina McKibben in the car, was pulled over by a West Virginia state trooper for a minor traffic offense. When the officer approached the car, Defendant drew a gun and shot the officer. A 30-minute car chase ensued. Defendant ultimately was stopped by a roadblock and tire spikes. While police were ordering him to exit the car, Defendant shot Kristina McKibben twice, then shot himself once in the chest. Kristina McKibben was taken by ambulance to the nearest hospital, and died shortly thereafter.

While Miss McKibben was in the ambulance, a police officer, Sergeant J.L. Cahill, interviewed her, recording the entire conversation on an audiotape. On the tape, Miss McKibben indicated that Defendant killed Tamara McKibben and Franklin Rigsby on Thursday, August 7, 2003, and then kidnapped her. She also described Defendant's travel patterns since the August 7, 2003 shooting, the nature and circumstances of Defendant's prior conviction, and the type of gun he used to shoot at the police on August 9, 2003. The taped statement also reveals that Miss McKibben was in the midst of receiving some sort of medical treatment when she made her statement. While the voices on the tape impart a sense of urgency, Miss McKibben answers all of Sergeant Cahill's questions coherently, articulately, and without hesitation. Defendant now moves to exclude this audiotaped statement as well as various letters written by Miss McKibben both before and after August 7, 2003.

III. ANALYSIS

A. Confrontation Clause

The Confrontation Clause of the Sixth Amendment states, "In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. Prior to the Supreme Court's watershed decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) governed the admissibility of out-of-court statements under the Confrontation Clause. Roberts permitted an unavailable witness's out-of-court statement to be admitted against the accused if the statement had adequate indicia of reliability. Roberts, 448 U.S. at 66, 100 S.Ct. 2531. A statement was considered to have sufficient indicia of reliability if it either fell within a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Id.

The Supreme Court, in Crawford,"introduced a fundamental re-conception of the Confrontation Clause." United States v. Cromer, 389 F.3d 662, 671 (6th Cir.2004). Crawford held that testimonial, out-of-court statements offered against the accused to establish the truth of the matter asserted may only be admitted where the declarant is unavailable and where the defendant has had a prior opportunity for cross-examination.¹ Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Crawford's holding reaffirmed the importance of the Confrontation Clause, finding that "[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of `reliability.'"² Id. at 61, 124 S.Ct. 1354. Thus, under Crawford, when the prosecution seeks to introduce "testimonial" statements against a criminal defendant, the defendant generally will have a right to confront those witnesses.

The Crawford decision, however, noted one potential exception and one definite exception to a defendant's rights under the Confrontation Clause. First, in a footnote, the Supreme Court observed that a dying declaration may present a historically grounded exception to the Confrontation Clause, but if so, "it is sui generis."³ Id. at 55 n. 6, 124 S.Ct. 1354. Second, the Court explicitly preserved the forfeiture by wrongdoing exception because, unlike other exceptions to the Confrontation Clause, it "does not purport to be an alternative means of determining reliability." Id. at 62, 124 S.Ct. 1354. Rather, the Court continued, forfeiture by wrongdoing applies only when a criminal defendant is responsible for the witness's unavailability, thereby "extinguish[ing]" a defendant's Confrontation Clause rights "on essentially equitable grounds." Id. at 62, 124 S.Ct. 1354.

The facts of the case sub judice invite this Court to confront questions Crawford left open. First, the Court must determine whether the Miss McKibben's audiotaped statement to the police, which was made minutes before her death and recounts the cause thereof, is properly admitted as a dying declaration. Second, the Court must address whether several letters written by Miss McKibben are admissible in light of her unavailability.

B. Audiotaped Statement of Kristina McKibben

As a threshold matter, the Court finds Miss McKibben's statement testimonial in nature. A "reasonable person in the declarant's position would anticipate [her] statement being used against the accused in investigating and prosecuting the crime." Cromer, 389 F.3d at 675. Indeed, the parties do not dispute this determination. The government argues that notwithstanding the statement's testimonial nature, it is admissible as either an excited utterance⁴ or a dying declaration, asserting that Crawford contemplated both as exceptions to the Confrontation Clause. Defendant counters that while the Supreme Court may have refrained from speaking directly to the continuing viability of dying declarations, the spirit of Crawford bars their admission. Dying declarations, Defendant argues, do not deserve the indicia of reliability long bestowed upon them. Relying on Charles W. Quick, Some Reflections on Dying Declarations, 6 HOW. L.J. 109, 112 (1960), Defendant suggests that dying people often make "self-serving declarations, such as false accusations, in order to destroy their enemies, and false excuses, in order to save their friends." Id. at 112.

The Court finds the audiotaped statement admissible, but rejects the government's argument that dying declarations are an exception to the Confrontation Clause.⁵ Instead, the Court, for the reasons set forth below, finds that Defendant, in making the witness unavailable for testimony, forfeited his rights under the Confrontation Clause by his own wrongdoing. As the Sixth Circuit has held, "a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness." Cromer, 389 F.3d at 679 (citing Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011, 1031 (1998)).

1. Forfeiture by Wrongdoing

It is well-established that a defendant's misconduct may result in a forfeiture of his or her rights under the Confrontation Clause. As explained by the court in Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir.1982), "[e]mploying a concept of either implicit waiver of confrontation or the principle that a person should not profit by his own wrong, English and American courts have consistently relaxed the hearsay rule when the defendant wrongfully causes the witness's unavailability." Id. at 1201. The Steele court analogized the principle underlying forfeiture by wrongdoing to the "equitable doctrine of `clean hands,'" in that both prevent a party from deriving any benefit from his or her own wrongdoing. Id. at 1201. More than twenty years later, the Supreme Court affirmed the forfeiture doctrine's grounding in equitable principles. Crawford, 541 U.S. at 62, 124 S.Ct. 1354 ("[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds....").

Recently, the court in United States v. Garcia-Meza, 403 F.3d 364, 370-71 (6th Cir.2005) elaborated on Crawford's abiding deference to equitable principles. In Garcia-Meza, a defendant, who had admitted to stabbing his wife, was on trial to determine whether he acted with premeditation to support a conviction of first degree murder.⁶ Id. at 370. Five months prior to her murder, the wife was brutally assaulted. At that time, the wife informed the police that her husband had become violent toward her after he discovered that she had spoken to her former boyfriend. Id....