United States v. Donnell Crews
2017 U.S. App. LEXIS 8175
| D.C. Cir. | 2017Background
- On Sept. 21, 2011, three men (identified as Kirk Dean, Donnell Crews, and Anthony James) confronted a cash-in-transit employee, Hugh Whitaker, outside a CVS in D.C.; a gunfight ensued and Dean was later shot and died of a separate head wound.
- Police apprehended Crews and James a few blocks away; physical evidence (a latex glove fragment with Crews’s DNA and James’s discarded jacket/scarf/gloves) and identifications linked them to the attempted robbery.
- At re-trial (first trial had hung), the government called ER nurse Joseph Brennan, who testified that Dean arrived at the hospital with severe head trauma and "brain matter" exposed; defense moved for mistrial.
- Crews’s sole defense witness, his fiancée Vakeema Ensley, testified that she and Crews were elsewhere earlier that morning; on cross, apparent impeachment material (a jail-call transcript) surfaced, counsel was appointed, and Ensley asserted the Fifth Amendment and refused further testimony.
- The district court gave a curative instruction regarding Brennan’s graphic testimony and, at the government’s request, struck all of Ensley’s testimony from the record; the jury found Crews guilty.
Issues
| Issue | Crews's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by denying mistrial after nurse’s testimony that Dean had "brain matter" exposed | Testimony was highly prejudicial and could not be "un-rung;" mistrial or stronger remedy required | Testimony was brief, context showed the fatal wound was unrelated, curative instruction sufficed and evidence against Crews was strong | Denial of mistrial affirmed: instruction cured any minimal prejudice and weight of admissible evidence made reversal unwarranted |
| Whether striking entirety of Ensley’s testimony after her Fifth Amendment invocation violated Crews’s right to present witnesses | Striking all testimony was overbroad; court should have retained direct testimony or used narrower remedies (partial strike, limiting instruction, read prior transcript) | Ensley asserted a blanket privilege; government needed cross; district court reasonably struck testimony to avoid undue prejudice given impeachment risk | No plain error: court did not clearly err in striking testimony where Ensley and her counsel asserted a broad, not limited, privilege and defense made no contemporaneous objection |
Key Cases Cited
- United States v. Gartmon, 146 F.3d 1015 (D.C. Cir.) (standard of review for mistrial denial: abuse of discretion)
- United States v. McLendon, 378 F.3d 1109 (D.C. Cir.) (factors for mistrial analysis: prejudicial force, curative instructions, weight of admissible evidence)
- United States v. Eccleston, 961 F.2d 955 (D.C. Cir.) (inadmissible hearsay can require mistrial when government case is weak)
- Greer v. Miller, 483 U.S. 756 (Sup. Ct.) (presumption that juries follow curative instructions)
- United States v. Ortiz, 82 F.3d 1066 (D.C. Cir.) (plain-error review where no contemporaneous objection to scope of Fifth Amendment claim)
- United States v. Cardillo, 316 F.2d 606 (2d Cir.) (framework for remedies when a witness invokes Fifth Amendment on cross: categories for striking testimony)
- United States v. Olano, 507 U.S. 725 (Sup. Ct.) (four-part plain-error test)
- United States v. Wheeler, 753 F.3d 200 (D.C. Cir.) (assessment of prejudicial nature of contested testimony)