United States v. Jescell Whittle

713 F. App'x 457
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 3, 2017
Docket16-6821
StatusUnpublished
Cited by2 cases

This text of 713 F. App'x 457 (United States v. Jescell Whittle) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jescell Whittle, 713 F. App'x 457 (6th Cir. 2017).

Opinion

COOK, Circuit Judge.

A jury convicted Jescell Whittle of attempted armed robbery of a Cricket Wireless store and of the armed robbery of a Speedway gas station convenience store. Whittle appeals his convictions and seeks a new trial, alleging numerous errors by the district court.

Finding no merit in his contentions, we AFFIRM his convictions.

I. BACKGROUND

A. The Robberies

In late 2012, a string of robberies and attempted robberies afflicted Louisville, Kentucky. A Cricket Wireless store was robbed on October 22, followed by an attempted robbery of a second Cricket Wireless store the next day. On October 29, a J.C. Cigarette Outlet store was robbed, as was a Thornton’s convenience store a day later. Then, early in the morning on October 31, a group of men robbed a Speedway gas station convenience store, taking approximately $450 in cash and shooting a bystander. Surveillance cameras at each location captured the incidents.

The Louisville Metro Police Department (“LMPD”) internally distributed a series of still images taken from the surveillance footage of each robbery. Reviewing the stills, Officer Andre Shaw recognized Jes-cell Whittle as one of the men who attempted to rob the Cricket Wireless store on October 28. Shaw knew Whittle’s face well; when he was an officer in the Kentucky Department of Juvenile Justice, Shaw supervised a then-teenaged Whittle around 2004 or 2005 and saw him five to six days per week, for eight to ten hours per day. Shaw testified that he had seen Whittle a couple of times since then, most recently while patrolling a Louisville street in “[rjoughly 2011 or 2012.”

LMPD Detective Tim Crowell showed Justin Durbin, a Speedway robbery victim, photos of six men. After Crowell made some introductory remarks and provided instructions, Durbin identified Whittle as the robber who shot another customer. Durbin later confirmed his identification at trial.

B. Arrest and Interrogation

LMPD officers arrested Whittle on November 8, 2012. Whittle had conversations with four different detectives that day. Before the first interview, the detectives read Whittle his Miranda rights, and Whittle signed a written waiver of those rights. First, Detective Larry Smith and Detective Crowell interviewed Whittle for about forty-five minutes to an hour, during which Whittle denied any knowledge of or involvement in the robberies. Recognizing that they were not making any headway with Whittle, Smith and Crowell suspended the interview and went down the hall to interview Tony Trumbo, another suspect in the Speedway and Cricket robberies who had also been arrested that day.

Crowell left Whittle in the care of Detective Larry Clark, who checked in on Whittle every fifteen to twenty minutes. Crowell never asked Clark to interview Whittle; however, on the third or fourth check-in, Whittle asked Clark if they could talk about his arrest. Unprompted, Whittle told Clark that he could not have perpetrated the October 23 Cricket robbery because he had been at work. Clark then took steps to confirm this alibi—calling Whittle’s employer, obtaining a waiver from Whittle for the release of his employment records, and traveling to his employer’s location.

Before Clark left LMPD headquarters, he asked another detective, Aleasha Rhu-dy, to take over supervising Whittle. Like Clark, Rhudy made herself available to Whittle in case he needed food, drink, or a trip to the restroom. As with Clark, nobody asked Rhudy to interview Whittle. Some time later, Whittle called for Rhudy and asked her how long Clark would be away confirming his alibi. Rhudy could not give him a good estimate, and Whittle responded by saying something along the lines of “[i]t probably doesn’t matter anyway.” This spurred a conversation between Whittle and Rhudy, with Whittle describing aspects of his troubled upbringing. Rhudy steered the discussion back toward the robberies, but Whittle hesitated, not wanting to become a “snitch.” Rhudy then left for a moment to use the bathroom, at which point she encountered an officer (she could not recall precisely who) involved in the Trumbo interview underway down the hall. Apparently, Trumbo was “telling [the police] everything that happened,” confessing to his involvement in the robberies.

Returning to Whittle, Rhudy told him that he need not worry about being a snitch because Trumbo was down the hall telling the whole story to the police. Rhudy made it clear that she did not think Whittle was a violent criminal out to hurt people intentionally. They then reviewed surveillance photographs from the robberies; when they came to photographs of the Speedway robbery, Whittle’s demeanor changed. When he expressed remorse that anyone was harmed in the robbery, Rhudy prompted him “to get your side of the story out because you don’t want to go into this with only Mr. Trumbo’s side of the story being told.,,.” Whittle eventually confessed his involvement in the Speedway robbery. He also confessed to participating in the October 23 Cricket robbery.

Up to this point, Rhudy hadn’t recorded her conversation with Whittle. Rhudy asked Whittle if he would “like the opportunity to tell his side of the story on tape.” When Whittle said yes, Rhudy retrieved a tape recorder and conducted a second interview (this one recorded) regarding the Cricket and Speedway robberies, during which they once again reviewed surveillance photographs.

Police later obtained warrants to search both Trumbo’s and Whittle’s homes, where they found evidence including clothing used in the robberies as well'as .22 and 9mm bullets, the same caliber as guns suspected of being used in the robberies.

C. Indictment and Trial

A grand jury indicted Whittle and several others on ten counts, including robbery, attempted robbery, and the use, carrying, brandishing, and discharging of a firearm during a crime of violence. Specifically, the indictment charged Whittle with the Cricket Wireless robberies, the robberies of the J.C. Cigarette Outlet and the Thornton’s convenience store, and the Speedway robbery, with concomitant firearms charges for each robbery.

A jury acquitted Whittle of some charges, but found him guilty of the October 23 Cricket Wireless attempted robbery, the Speedway robbery, and the accompanying firearms violations. In total, the district court sentenced him to 444 months’ imprisonment. This timely appeal raising five issues followed.

The government had a strong case against Whittle, with his recorded confession, surveillance footage that captured his face, and victim-eyewitness identification. He defended by seeking to suppress the confession based on alleged police coercion, and by raising constitutionally based evidentiary challenges to his conviction. Agreeing with the decisions by the district court on each challenge, we affirm Whittle’s convictions.

II. HEARSAY AND CONFRONTATION CLAUSE ISSUES

Whittle first argues that the district court violated his Sixth Amendment Confrontation Clause rights by admitting six hearsay statements without proper limiting instructions. We review these challenges de novo.

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Bluebook (online)
713 F. App'x 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jescell-whittle-ca6-2017.