United States v. Jescell Whittle
713 F. App'x 457
| 6th Cir. | 2017Background
- In late October 2012 a series of Louisville robberies were captured on surveillance; Whittle was arrested November 8, 2012 and later tried for multiple robberies and related firearms offenses.
- Officer Andre Shaw and victim Justin Durbin identified Whittle from photos and surveillance stills; police also obtained a taped confession from Whittle after several unrecorded interviews and a recorded interview by Detective Aleasha Rhudy.
- Rhudy’s recorded tape contained interjections referencing co-defendant Tony Trumbo’s statements made to other officers; Trumbo had confessed down the hall.
- Warrants executed at Whittle’s and Trumbo’s homes produced clothing and .22 and 9mm bullets potentially linking Whittle to the Speedway robbery.
- A jury convicted Whittle of attempted armed robbery of a Cricket Wireless store, armed robbery of a Speedway convenience store, and related firearms counts; the district court sentenced him to 444 months. Whittle appealed raising evidentiary and constitutional claims; the Sixth Circuit affirmed.
Issues
| Issue | Whittle's Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of out-of-court statements referencing Trumbo without limiting instruction | Statements were hearsay and violated Confrontation Clause; court should have limited jury use | Statements were offered for non-hearsay purposes (investigative background and to rebut coercion claim); failure to give instruction was harmless | Statements admissible for non-hearsay purposes; failure to give a limiting instruction harmless beyond a reasonable doubt |
| Voluntariness and §3501(a) hearing for confession; Fifth Amendment waiver | Court failed to determine voluntariness of confession separate from Miranda waiver; coercion made confession involuntary | Magistrate held waiver knowing and voluntary after suppression hearing; voluntariness issue for confession not preserved if not timely raised | Magistrate/district court satisfied §3501(a); Whittle forfeited the distinct voluntariness claim and Fifth Amendment arguments by not raising them below |
| Eyewitness ID (Durbin) allegedly suggestive | Photo array and subsequent trial preparation improperly influenced Durbin’s ID, creating due process violation | Officer remained neutral during selection; later witness-refreshing was permissible memory refresh for trial | Identification procedure not impermissibly suggestive; trial preparation was proper refreshment, not undue influence |
| Judicial notice and cross-examination concerning Officer Shaw’s claimed street encounters | Court should have judicially noticed jail records showing Whittle incarcerated at times Shaw claimed seeing him, to undermine Shaw’s ID testimony | Judicial notice would inappropriately signal credibility to jury and was not proper vehicle; Whittle had prior opportunities to obtain records and to cross-examine | Court did not abuse discretion in refusing judicial notice; confrontation concerns not implicated given Whittle’s failure to timely pursue records |
| Admission of 9mm bullet photographs | Photos were prejudicial and minimally probative | Photos tied bullets found at Whittle’s residence to caliber seen in surveillance; relevant circumstantial evidence | District court did not abuse discretion; probative value not substantially outweighed by prejudice |
Key Cases Cited
- United States v. Vasilakos, 508 F.3d 401 (6th Cir.) (standard of review for hearsay/Confrontation Clause issues)
- United States v. Martin, 897 F.2d 1368 (6th Cir.) (out-of-court statements admissible when offered for background/investigative purpose)
- Tennessee v. Street, 471 U.S. 409 (1985) (prosecution may rebut claim that confession was coerced)
- United States v. Cruz-Diaz, 550 F.3d 169 (1st Cir.) (importance of limiting instructions for nonhearsay uses of inculpatory statements)
- United States v. Fraser, 448 F.3d 833 (6th Cir.) (Rule 105 and limiting instruction obligations)
- United States v. Chance, 306 F.3d 356 (6th Cir.) (harmless-error review where limiting instructions given later)
- United States v. Willoughby, 742 F.3d 229 (6th Cir.) (government must show beyond a reasonable doubt that evidentiary error was harmless)
- United States v. Meyer, 359 F.3d 820 (6th Cir.) (burden on defendant to prove identification procedure impermissibly suggestive)
- United States v. Calhoun, 544 F.2d 291 (6th Cir.) (Confrontation Clause and cross-examination limits when testimony would force disclosure of prejudicial records)
- Delaware v. Fensterer, 474 U.S. 15 (1985) (Confrontation Clause guarantees opportunity for effective cross-examination, not perfect cross-examination)
- Blackston v. Rapelje, 780 F.3d 340 (6th Cir.) (credibility determinations are for the jury; judicial notice can improperly signal judge’s view)