United States v. Whittle

• Decision Date: 29 November 2016
• Docket Number: CIVIL ACTION NO. 3:13–cv–00170–JHM
• Citation: 223 F.Supp.3d 671
• Parties: UNITED STATES of America, Plaintiff v. Jescell WHITTLE, Defendant.
• Court: U.S. District Court — Western District of Kentucky

223 F.Supp.3d 671

UNITED STATES of America, Plaintiff

v.Jescell WHITTLE, Defendant.

CIVIL ACTION NO. 3:13–cv–00170–JHM

United States District Court, W.D. Kentucky, Louisville Division .

Signed November 29, 2016

A. Spencer McKiness, Robert B. Bonar, U.S. Attorney Office, Louisville, KY, for United States of America.

Patrick J. Renn, Smith & Helman, R. Kenyon Meyer, Dinsmore & Shohl LLP, Louisville, KY, for Jescell Whittle.

MEMORANDUM OPINION AND ORDER

Joseph H. McKinley, Jr., Chief Judge, United States District Court

This matter is before the Court on Defendant's Motion for a New Trial [DN 278]. Fully briefed, this matter is ripe for decision. For the following reasons, the Court holds that Defendant's Motion is DENIED .

I. BACKGROUND

Defendant Jescell Whittle was arrested on November 8, 2012 and was suspected in connection with several robberies that occurred in October of 2012, including: the robbery of a Cricket Wireless store located at 4443 Cane Run Road, Louisville, Kentucky, on October 22, 2012, the attempted robbery of a Cricket Wireless store located at 3125 W. Broadway, Louisville, Kentucky, on October 23, 2012, the robbery of a Thornton's store located at 4516 Poplar Level Road, Louisville, Kentucky, on October 30, 2012, and the robbery of a Speedway store located at 3030 Taylor Boulevard, Louisville, Kentucky, on October 31, 2012. (Order [DN 243] at 1–3.) He was later identified by a victim in a fifth robbery, as being one of the individuals who robbed the JC Cigarette Outlet store located at 2714 Crums Lane, Louisville, Kentucky, on October 29, 2012. (Id. )

The surveillance video from the attempted robbery of the Broadway Cricket Wireless depicted two black males entering the business through the front door. Both were wearing hoodies and approached the clerk who was stationed behind the counter. One man wore a bright multicolored hoodie and brandished a chrome revolver, while the other, leaner man wore a black hoodie. The men acted like they were there to pay their phone bills and demanded cash from the clerk. Instead of obeying their requests, the clerk ran to a back office and hid. Both men retreated without obtaining any property.

The surveillance videos of the Speedway robbery show three black men enter the store wearing hoodies. During the robbery, the men order the customers to get on the ground. They then took property from the customers, and one of the robbers discharged his weapon, shooting one customer in the back. The men escaped with customer and Speedway property.

On August 23, 2016, Whittle was tried by a jury for all robberies except the robbery of the Thornton's store. On August 30, 2016, Whittle was convicted of one count of attempted robbery (relating to the Cricket Wireless store on Broadway), one count of robbery (relating to the Speedway store), and two counts of using, brandishing, or discharging a firearm during and in relation to a crime of violence. (Jury Verdict [DN 275] at 3–8.)

During the trial, the United States played a recording of an interview between Detective Aleasha Rhudy and Whittle after Whittle had been arrested and was in custody. During this interview, Detective Rhudy relayed to Whittle statements made by his co-defendant, Tony Trumbo. Detective Rhudy's account of Trumbo's statements implicated Whittle in the Broadway Cricket Wireless and Speedway robberies. Additionally, Whittle confessed to being involved in the attempted robbery of the Broadway Cricket Wireless store, to having a .22 caliber revolver (the same type of weapon as was used in this attempted robbery), and to wearing the multicolored hoodie. He further confessed to being involved in the robbery of the Speedway store and that he was the one who shot the customer in the back. He described the clothes he wore during this robbery as a black Carhartt hoodie, blue t-shirt, and white Nike shoes. When Whittle was arrested, he was wearing the white Nikes, and a search of Trumbo's residence revealed Whittle's social security card, a size 4XL black Carhartt hoodie, and a size 5XL blue t-shirt.

Prior to trial, Defense counsel moved to have the portions of the confession relating to Trumbo's statements redacted; however, the Court allowed the prosecution to play the entire recording of Whittle's entire confession. Now, Whittle has filed the instant Motion claiming that his rights under the Confrontation Clause of the Sixth Amendment were violated when the Court allowed Detective Rhudy's account of Trumbo's out-of-court statements.

II. STANDARD OF REVIEW

Rule 33 provides that "[u]pon the defendant's motion, [a district] court may vacate any judgment and grant a new trial if the interest of justice so requires." United States v. Munoz , 605 F.3d 359, 373 (6th Cir. 2010) (quoting Fed. R. Crim. P. 33(a) ). Rule 33's "interest of justice" standard allows the grant of a new trial where substantial legal error has occurred. Id. (citing United States v. Wall , 389 F.3d 457, 474 (5th Cir. 2004) (stating that "any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial")); United States v. Kuzniar , 881 F.2d 466, 470 (7th Cir. 1989) (stating that Rule 33 relief is available where "the substantial rights of the defendant have been jeopardized by errors or omissions during trial"); United States v. De Miranda , No. CRIM.NO.2008–20, 2008 WL 5412848, at *3 (D.V.I. Dec. 29, 2008), aff'd , 360 Fed.Appx. 295 (3d Cir. 2010) (stating that Rule 33 relief is available where defendant "show[s] ... reversible error at his trial").

"The decision to grant or deny a new trial rests within the district court's sound discretion." United States v. Seago , 930 F.2d 482, 488 (6th Cir. 1991). "[T]he defendant bears the burden of proof that a new trial is warranted and ‘such motions should be granted sparingly and with caution.’ " United States v. Dolan , 134 F.3d 372 at *3 (6th Cir. 1997) (quoting United States v. Turner , 995 F.2d 1357, 1364 (6th Cir. 1993) ).

III. DISCUSSION

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. The primary purpose of the Confrontation Clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. Crawford v. Washington , 541 U.S. 36, 50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; see e.g. Douglas v. State of Ala. , 380 U.S. 415, 418–19, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). However, there is no Confrontation Clause issue when out-of-court statements are admitted for purposes other than showing the truth of the matter asserted. Crawford , 541 U.S. at 59 n. 9, 124 S.Ct. 1354 ; see, e.g. , Williams v. Illinois , 567 U.S. 50, 132 S.Ct. 2221, 2227–28, 183 L.Ed.2d 89 (2012) ; Michigan v. Bryant , 562 U.S. 344, 367 n. 11, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) ; Tennessee v. Street , 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985).

Here, Whittle argues that Detective Rhudy's representations of Tony Trumbo's statements that implicated Whittle in the Broadway Cricket Wireless attempted robbery and the Speedway robbery are inadmissible hearsay, which violated Whittle's Sixth Amendment right because Trumbo did not testify. Whittle argues that Trumbo's statements are inadmissible hearsay because they were testimonial and introduced to prove the truth of the matter asserted. The United States argues that Trumbo's statements were introduced for two non-hearsay purposes: 1) not to prove the truth of the matter asserted, but to give context to Whittle's incriminating statements throughout the course of the confession, and 2) to rebut the contention that Whittle's confession was the product of unduly or unfair coercion by law enforcement.

The Confrontation Clause prohibits the admission of an out-of-court testimonial statement at a criminal trial unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. See Crawford , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177. Testimonial statements include statements taken by police officers in the course of interrogation. Id. at 52–53, 124 S.Ct. 1354. Accordingly, under Crawford , Trumbo's statements were testimonial because they were made to law enforcement and could be considered inadmissible hearsay if offered to prove the truth of the matters asserted. However, the Confrontation Clause does not apply to non-hearsay, that is, it "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford , 541 U.S. at 40, 124 S.Ct. 1354.

The United States contends that Trumbo's statements relayed via Detective Rhudy were not hearsay, and did not implicate the Confrontation Clause, because they were not introduced for their truth but rather to supply context for Whittle's responses to Detective Rhudy's questions.¹ When an out of court statement is not offered to prove the truth of the matter asserted, and instead, is offered to make the defendant's statements intelligible as an admission and place them in context, the Confrontation Clause is not implicated. United States v. Stines , 313 F.3d 912, 919 (6th Cir. 2002) ; see United States v. Liriano , 761 F.3d 131, 136–37 (1st Cir. 2014) ; United States v. Cruz–Diaz , 550 F.3d 169, 176 (1st Cir. 2008) ; United States v. Foster , 701 F.3d 1142, 1150–51 (7th Cir. 2012) ; United States v. Crippen , 627 F.3d 1056 (8th Cir. 2010) ; U.S. v. Rodriguez , 484 F.3d 1006, 1013–14 (8th Cir. 2007), cert. denied , 552 U.S. 890, 128 S.Ct. 316, 169 L.Ed.2d 152 (2007) ; United States v. Bobb , 471 F.3d 491, 499 (3d Cir. 2006).²

Whittle takes issue with three specific examples of statements made by Detective Rhudy during Whittle's recorded confession. In the first, Detective Rhudy states:

I know you don't want to say anything about

...