United States v. Whittle

223 F. Supp. 3d 671, 2016 WL 7015674, 2016 U.S. Dist. LEXIS 164203
CourtDistrict Court, W.D. Kentucky
DecidedNovember 29, 2016
DocketCIVIL ACTION NO. 3:13-cv-00170-JHM
StatusPublished

This text of 223 F. Supp. 3d 671 (United States v. Whittle) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Whittle, 223 F. Supp. 3d 671, 2016 WL 7015674, 2016 U.S. Dist. LEXIS 164203 (W.D. Ky. 2016).

Opinion

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 [675]*675Rhudy 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 “[ujpon 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 \yith 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 [676]*676showing 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.

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Bluebook (online)
223 F. Supp. 3d 671, 2016 WL 7015674, 2016 U.S. Dist. LEXIS 164203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-whittle-kywd-2016.