U.S. v. Mayhew

Decision Date22 June 2005
Docket NumberNo. 2:03-cr-165.,2:03-cr-165.
Citation380 F.Supp.2d 915
PartiesUNITED STATES of America, Plaintiff, v. John Richard MAYHEW, Jr., Defendant.
CourtU.S. District Court — Southern District of Ohio

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

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


MARBLEY, District Judge.


This matter is before the Court on the following motions: (1) Defendant's Motion to Suppress Statements; (2) Defendant's Motion in Limine to Exclude Evidence of The Accused's Prior Convictions and Other Acts; and (3) Defendant's Motion to Exclude Any Evidence Relating to Other Crimes, Wrongs, or Acts. On June 10, 2005, the Court heard oral arguments on the above Motions. For the following reasons, the Court DENIES Defendant's Motion to Suppress Defendant's Statements for Fifth and Sixth Amendment violations [Docket No. 52]; the Court GRANTS in part and DENIES in part Defendant's Motion to Exclude Defendant's Statements Pursuant to Federal Rules of Evidence 401, 402, 403, and 404(b) [Docket No. 50]; and the Court finds Defendant's Motion to Exclude Any Evidence of Other Crimes, Wrongs, or Acts [Docket No. 46] not ripe for decision.


The essential background 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. While at the residence, he threatened Tamara McKibben's son, Andy Aspell, Jr., with his gun. Defendant then kidnaped his and Tamara McKibben's daughter, Christina McKibben, from the home. Defendant took Christina McKibben with him in his car and drove with her to West Virginia. On August 9, 2003, Defendant, still with Christina 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 Christina McKibben twice, then shot himself once in the chest. Police pulled both people from the car, and Christina McKibben told the police that she was from Columbus and that there was a bomb in the car. Two bombs were found under the front seats of the vehicle. Christina McKibben died en route to the hospital.

Paramedics took Defendant, via ambulance, to a West Virginia hospital. After Defendant was loaded into the ambulance, one police officer read Defendant his Miranda rights while another officer observed the Miranda rights administration.1 Defendant waived his Miranda rights and the officers proceeded to interrogate Defendant. During both the Miranda administration and Defendant's subsequent interrogation, an emergency medical technician ("EMT") and a paramedic treated Defendant for the gunshot wound. The vast majority of the ambulance ride was recorded on an audio-videotape, which the Court has viewed in-camera.2 Defendant made several statements during the ambulance ride, including the following:

1. Defendant admits to killing Tamara McKibben and Frank Rigsby with a Tech 9;

2. Defendant asks if West Virginia has the death penalty;

3. Defendant admits that he has been to prison for Aggravated Burglary and Kidnaping with Gun Specifications;

4. Defendant informs Detective Livingston that he has additional firearms — namely a 12-gauge shotgun and a .22 Magnum Marlin bolt-action rifle — at his home at 28 North Princeton Avenue in Columbus;

5. Defendant states that he is aware that the police have been to his house since the double homicide;

6. Defendant denies planning the murder of Tamara McKibben and Frank Rigsby, stating it happened because Christina McKibben "coaxed" him into doing it;

7. Defendant pleads with medics to let him die and states "saving me is a waste of time and taxpayers" money;

8. Defendant acknowledges that Ohio has the death penalty;

9. Defendant responds in the affirmative when asked if his statements to the officer were voluntary.

On October 2, 2003, the government issued a seven count Indictment charging Defendant with the following offenses:

(1) that he "did willfully and unlawfully kidnap, abduct and carry away Christina McKibben and willfully transport Christina McKibben in interstate commerce from the Southern District of Ohio to the state of West Virginia, and did hold her for ransom, reward or otherwise, resulting in the death of Christina McKibben";

(2) that, having been convicted of a felony in 1992, for the offense of kidnaping with gun specification, he "knowingly possessed a firearm, that is, an Intratec, Model Tec 9, .9mm pistol, the said firearm having been shipped and transported in interstate commerce";

(3) that he "did knowingly transport or receive, in interstate commerce, an improvised explosive device with the knowledge or intent that it would be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy a vehicle, or other real or personal property";

(4) that he "did knowingly possess a firearm, that is, an improvised explosive device, not registered to him in the National Firearms Registration and transfer record as required in 26 U.S.C. § 5841";

(5) that he "did knowingly possess an unregistered firearm, that is, an improvised explosive device, not identified by a serial number, as required in 26 U.S.C. § 5842";

(6) that he "did knowingly travel in interstate commerce, with the intent to injure, harass and intimidate... Christina McKibben ..., and in the course of and as a result of such travel ... placed Christina McKibben in reasonable fear of death and serious bodily injury, and such acts resulted in the death of Christina McKibben"; and

(7) that he "did knowingly use, carry, brandish and discharge a firearm, that is, a pistol, and did knowingly carry an unregistered destructive device, all during and in relation to a crime of violence, for which he may be prosecuted in a court of the United States [for] interstate stalking in violation of 18 U.S.C. § 2261A(1), and in so doing, [he] committed murder ... with malice aforethought, such murder being willful, deliberate, malicious and premeditated."

Defendant filed the above Motions at October 1, 2004. The government filed a Consolidated Response on November 24, 2004.


The Court first addresses Defendant's Motion to Suppress the incriminating statements he made in the ambulance ("ambulance statements") on the grounds that his waiver of Miranda rights and all subsequent statements were involuntary. The Court then turns to Defendant's alternative argument, in which he claims that these ambulance statements should be excluded because they are either irrelevant or too prejudicial pursuant to Federal Rules of Evidence 401, 402, 403, and 404(b). Finally, the Court addresses briefly Defendant's Motion to Exclude Any Evidence of Other Crimes, Wrongs, or Acts.

A. Motion to Suppress

Defendant moves to suppress the ambulance statements, claiming that the police violated his Fifth Amendment privilege against self-incrimination, his Fifth and Fourteenth Amendment rights to due process of law, and his Sixth Amendment right to counsel. For the following reasons, the Court concludes that Defendant voluntarily waived his Miranda rights and voluntarily made incriminating statements following the waiver. Furthermore, Defendant's Sixth Amendment right to counsel had not yet attached when he was in the ambulance. Thus, Defendant's Motion to Suppress is DENIED.

1. Fifth Amendment Rights

The Court first addresses Defendant's threshold argument that Lt. Livingston failed to advise properly Defendant of his Miranda rights. The Court then turns to Defendant's arguments that both the Miranda waiver and any subsequent statements were involuntary due to police coercion and because Defendant could not have knowingly waived his rights. The voluntariness of Defendant's Miranda-waiver is a separate inquiry from the voluntariness of the statements made subsequent to the waiver; however, both inquiries turn on the same facts and circumstances. Thus, the Court touches briefly on each inquiry, but then combines the factual analysis, and concludes that both Defendant's waiver of his Miranda rights and his subsequent statements did not violate Defendant's Fifth Amendment rights.

a. Completeness of Miranda Rights

As a threshold matter, Defendant argues that Lt. Livingston failed to advise him properly of his Miranda rights by neglecting to ask Defendant explicitly whether Defendant understood his rights.

The transcript reads:

Lt. Livingston: Listen to me, John. You have the right to remain silent and refuse to answer questions. Anything you say can and will be used against you in a court of law.

Mayhew: (Unintelligible).

Livingston: Let me read you your rights, though. (Unintelligible).

* * *

Livingston: Anything you say can and will be used against you in a court of law. You have the right to consult an attorney before you (unintelligible), to have an attorney present during any questioning now or in the future. If you do not have an attorney available, you have the right to remain silent until you've had the opportunity to consult with one.

Now that you've been advised of your rights, are you willing to talk to the police without an attorney present?

Mayhew: Yeah.3

Livingston: Okay.

(Videotape Tr. at 2-3).4

Although the Court would have preferred an explicit question asking Defendant whether he understood his rights, the lack of such a question does not vitiate the legality of Defendant's waiver. The Supreme Court has "never insisted that Miranda warnings...

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