People of Michigan v. Kennie Carnail Whitby
334737
| Mich. Ct. App. | Dec 28, 2017Background
- June 5, 2015: three armed men robbed a basement poker game at Mary Pezzoni’s house; victims identified items taken and described coordinated entry and escape in a Buick later linked to defendant’s family.
- Four suspects were arrested and implicated defendant (Kennie Whitby) as the organizer; police located defendant at a brewery and he fled briefly before arrest.
- Trooper Hayes conducted a custodial interview; part of the audiovisual recording (including Miranda advisement) was missing; later in the interview defendant signed a consent-to-search form for his phone.
- Police obtained phone data via extraction from defendant’s handset and via carrier records (warrants/preservation requests); inculpatory texts and call logs tying defendant to planning and apologies were admitted at trial.
- Jury convicted Whitby of first-degree home invasion, multiple counts of armed robbery, and resisting/obstructing; he was sentenced as a fourth habitual offender to lengthy concurrent terms. Whitby appealed; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miranda advisement/absence of full audiovisual recording required suppression | Prosecutor: incomplete recording does not automatically suppress statements if advisement and waiver occurred and testimony supports that | Whitby: missing video of Miranda advisement and no signed waiver required suppression of the interview | Court: no clear error; officer credibly testified advisement/waiver occurred; suppression denied |
| Validity of consent to search defendant’s phone and admissibility of extracted data | Prosecution: consent was voluntary, specific, and intelligent; independent carrier records corroborated text evidence | Whitby: consent coerced (custodial, after invoking counsel), troopers searched phone before consent — Fourth, Fifth, Sixth Amendment violations | Court: consent valid under totality of circumstances; no Fifth or Sixth Amendment violation; any minimal pre-consent intrusion did not require suppression because independent source (carrier records) provided evidence |
| Admissibility of coconspirator hearsay (statements by Toursean via Terence) | Prosecution: independent evidence established a conspiracy involving Whitby, so statements during/in furtherance admissible under MRE 801(d)(2)(E) | Whitby: hearsay—trial court admitted coconspirator statements before proving conspiracy | Court: preponderance of independent evidence (circumstantial links, vehicle, texts, contradictions) established conspiracy; admission proper |
| Ineffective assistance for failure to request MCL 763.9 jury instruction about missing recording | Prosecution: jury knew recording incomplete; instruction would not have changed outcome | Whitby: counsel should have requested jury instruction that absence of full video may be considered | Court: defense counsel waived any instructional error by expressing satisfaction; even assuming deficient performance, no reasonable probability outcome would differ given other strong evidence |
| Legality of arrest and failure to seek severance of resisting charge | Prosecution: officer had reasonable cause to arrest for parole violation; resisting conduct related to the charged offenses so joinder proper | Whitby: arrest unlawful (no parole-warrant in record), so counsel ineffective for not challenging arrest or seeking severance | Court: officer had reasonable cause and arrest lawful; resisting charge related to the underlying conduct; counsel not ineffective for failing to raise meritless objections |
Key Cases Cited
- People v. Simmons, 316 Mich. App. 322 (Mich. Ct. App. 2016) (standard of review for suppression rulings)
- People v. Mahdi, 317 Mich. App. 446 (Mich. Ct. App. 2016) (review of factual findings in suppression hearings)
- Nix v. Williams, 467 U.S. 431 (U.S. 1984) (independent source doctrine)
- Virginia v. Moore, 553 U.S. 164 (U.S. 2008) (reasonableness governs searches/arrests)
- People v. Cipriano, 431 Mich. 315 (Mich. 1988) (factors for assessing voluntariness of consent)
- People v. Martin, 271 Mich. App. 280 (Mich. Ct. App. 2006) (elements for admitting coconspirator statements)
- People v. Trakhtenberg, 493 Mich. 38 (Mich. 2012) (ineffective-assistance standard)
- People v. Marsack, 231 Mich. App. 364 (Mich. Ct. App. 1998) (post-invocation requests for consent and Fifth Amendment analysis)