United States v. Crews

• Decision Date: 09 May 2017
• Docket Number: No. 14-3089,14-3089
• Parties: UNITED STATES of America, Appellee v. Donnell CREWS, also known as Donnell C. Crews, also known as Darnell C. Crews, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

856 F.3d 91

UNITED STATES of America, Appellee

v.Donnell CREWS, also known as Donnell C. Crews, also known as Darnell C. Crews, Appellant

No. 14-3089

United States Court of Appeals, District of Columbia Circuit.

Argued February 23, 2017

Decided May 9, 2017

Jerald R. Hess, Washington, DC, argued the cause for appellant. With him on the briefs was Charles B. Wayne, Washington, DC.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Elizabeth H. Danello, and David B. Kent, Assistant U.S. Attorneys.

Before: Garland, Chief Judge, and Kavanaugh and Pillard, Circuit Judges.

Pillard, Circuit Judge:

On September 21, 2011, three men approached Hugh Whitaker, an employee of a cash-in-transit service, as he exited a CVS in Washington, D.C. One of the men drew a handgun and demanded the cash Whitaker had just picked up from the CVS. Whitaker drew his own handgun and they exchanged gunfire. Whitaker retreated into the CVS unharmed. The three other men, one of whom had been shot, fled the scene. The police apprehended Donnell Crews and his half-brother, Anthony James, a couple of blocks away. After a witness identified Crews and James as two of the men who confronted Whitaker at the CVS, the police arrested them and charged them with attempted robbery. James agreed to a plea deal and testified against Crews and another alleged co-conspirator. Crews's first trial ended with a hung jury. The government retried him, and the jury found him guilty.

Crews now claims that two errors in the district court's evidentiary rulings require us to vacate his conviction. First, Crews argues the district court erred by denying his motion for a mistrial after Joseph Brennan, an emergency room nurse, testified that a gravely injured alleged co-conspirator arrived at the hospital with "brain matter that was exposed." But the district court remedied what little prejudice Brennan's testimony might have produced by giving a curative instruction to the jury. Second, Crews contends that the district court erred by striking the entire testimony of his sole witness, Vakeema Ensley, who, after testifying in Crews's support, asserted her constitutional privilege against self-incrimination near the outset of cross examination by the prosecution. Crews asserts that the district court should have struck only the testimony that related to the specific line of questioning corresponding to the cross-examination questions as to which Ensley invoked the privilege. But the record shows that Ensley asserted a blanket privilege against any further cross examination, and that Crews made no contemporaneous objection to the evidentiary decisions the district court made in response. The district court did not plainly err by striking the entirety of her testimony. Detecting no reversible error on either point, we affirm.

I.

According to the government's evidence, Anthony James and Appellant Donnell Crews met with two other men the evening before the attempted robbery, Kirk Dean (the brother of James's best friend) and Antwon Crowder (Dean's brother). That evening, Dean convinced James and Crews to participate in a planned robbery. The next day, Dean and Crowder met James at the home of Crews and James's grandmother. When Crews's fiancée, Vakeema Ensley, drove up in her car, Dean asked her for the keys, explaining that Crews had told him that he could drive it. At first Ensley refused, but then she surrendered the keys and stormed inside. Crews soon joined the others and the four men set off in Ensley's car, donning latex gloves during the drive. Crowder parked the car around the corner from the CVS and waited in the car.

Whitaker, an employee of Garda Cash Logistics, a secure cash-in-transit company, arrived at the CVS in an armored truck just before 11:00 am. While the driver, his co-worker James Jones, remained in the truck, Whitaker entered the CVS and accepted approximately $10,000 to be deposited. When Whitaker exited the store, three men—later identified as Dean, Crews, and James—confronted him. One of the men began to draw a gun from his waistband, but the gun momentarily slipped in his grasp, giving Whitaker enough time to draw his own handgun. The assailant fired at Whitaker, but missed. Whitaker returned fire as he retreated into the CVS, managing to shoot Dean in the jaw and elbow.

The three men then ran back to Ensley's car where Crowder was waiting for them. Despite sustaining two gunshot wounds

, Dean told the others he wanted to go back after Whitaker. Crews attempted to usher Dean into the car, urging him to go to the hospital. A brief struggle ensued, as Dean tried to pull away, but Crews managed to force Dean into the car. Crowder drove away with Dean beside him. Crews and James took off on foot, with James quickly discarding his jacket, scarf, and latex gloves in an alleyway as they ran. The police apprehended Crews and James a couple blocks from the CVS.

Jones, the armored truck driver, later identified James and Crews as two of the participants in the crime, and the police arrested them both for attempted robbery.

Meanwhile, Crowder raced to the hospital with Dean bleeding in the passenger seat. Traffic cameras captured a few images of the exterior of Ensley's car speeding through the neighborhood, but no other evidence revealed what happened during that ride. By the time Crowder reached the hospital, Dean had sustained another gunshot wound

, this time to his head. Crowder pulled into the hospital's ambulance parking area, exited the car, used his shirt to wipe fingerprints from the door, and hurried away. Emergency room nurse Joseph Brennan discovered Dean slumped in the passenger seat in bloody clothing. At trial, the government and the defendants stipulated that Dean later died as a result of a gunshot wound unrelated to the attempted robbery—presumably the unexplained gunshot wound that he sustained while in transit from the CVS to the hospital. The police later arrested Crowder in connection with the attempted robbery. The police recovered physical evidence near the CVS and in Ensley's car, including James's jacket, scarf, and gloves, and a piece of a latex glove with Crews's DNA on the inside surface.

The government jointly tried Crews and Crowder. The first trial ended with a hung jury, and re-trial proceeded before the same district judge. The government called Brennan, the emergency room nurse, as a witness at both trials. At the first trial, Brennan testified that he discovered Dean in the passenger seat of the car, covered in blood, with a head wound

and matted hair. But at the second trial Brennan added that he could see "brain matter that was exposed" as he examined Dean in the car. Supp. App. 234. Crowder's counsel objected. He noted that the parties had carefully avoided discussing the gunshot wound that killed Dean. He objected that Brennan's reference to exposed brain matter might appear to contradict James's testimony that, shot only in the elbow and jaw, Dean ran from the CVS back to the car. The later gunshot was not at issue in this case, but Crowder's counsel argued that the jury would erroneously infer that Dean's apparently much more serious, "drop-and-fall" head wound happened during the attempted robbery, contradicting testimony about Dean's actions after suffering lesser wounds at the CVS and prejudicing the defense. Supp. App. 237.

Having heard from all counsel and at the defense's request, the district judge agreed to address any potential confusion from Brennan's testimony by reminding the jury that Dean died from a gunshot wound

unrelated to the attempted robbery. Id . at 237-42. After cross examination, Crews and Crowder moved for a mistrial, arguing that it would be impossible to "un-ring the bell" after the jury heard Brennan's graphic testimony. Id. at 241. The district judge denied the motion, but he instructed the jurors to disregard the testimony they heard "about brain matter and matted, bloody hair," and urged them not to allow sympathy or passion to affect their judgment. Trial Tr. 123-24, Feb. 20, 2014.

Crews's counsel did not attempt to rebut the government's evidence placing him near the CVS when the attempted robbery occurred. Instead, counsel suggested during his opening statement that Crews knew about the planned robbery, sought to avoid participating, but wanted to do so in a way that would not cause the others to think he had deliberately abandoned them. In support of that narrative, the defense called Crews's fiancée, Vakeema Ensley, as a witness at both trials to testify how Crews occupied himself elsewhere on the morning of the robbery. Ensley testified that, during the morning before the attempted robbery, she and Crews drove to Beltsville, Maryland to buy a part for her mother's car. While in Maryland, a surveillance camera captured Crews entering a 7-Eleven. After running the errand, Ensley and Crews drove into the District, because they both had a shift scheduled later that day with the Greater Washington Urban League where they worked. They first headed to Crews's grandmother's house. As they approached the house, Crews asked Ensley to drop him off a few blocks away to meet his brother. After she dropped him off, Ensley parked her car outside the grandmother's home, entered and left her keys on the radiator by the front door, and went upstairs to lie down briefly to wait for Crews.

During her direct examination Ensley testified that she did not know Antwon Crowder or Kirk Dean before the arrests. At the first trial, the government attempted to impeach Ensley by asking about her grand jury testimony, in which she referred to "Kirk" as Crews's friend. She explained that she only learned that Crews and Kirk Dean were friends after the police arrested Crews. At the second trial, Ensley once again disavowed any prior acquaintance with Crowder or Dean. This time, the government focused on Crowder. When the prosecutor asked Ensley if she had...