United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER FINDING DEFENDANT TO HAVE VIOLATED
THE CONDITIONS OF HIS SUPERVISED RELEASE, REVOKING
DEFENDANT'S SUPERVISED RELEASE AND IMPOSING
SENTENCE
HON.
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE
I.
INTRODUCTION AND BACKGROUND
Defendant
Juwan Perry pleaded guilty to conspiracy to possess with
intent to distribute controlled substances in violation of 21
U.S.C. §§ 841(a)(1) & 846 and failure to appear
after pre-trial release in violation of 18 U.S.C. §
3146(a)(1). This Court sentenced Defendant to a term of 42
months imprisonment on the conspiracy conviction and a term
of 18 months imprisonment on the failure to appear
conviction, which was to run consecutive to the 42 months
imprisonment for the conspiracy conviction. Defendant
commenced his 36-month term of supervised release on January
12, 2018.
On May
1, 2019, Defendant's probation officer issued a violation
report alleging that Defendant committed the following
violations of the terms of his supervised release: (1) on
September 17, 2018, Defendant was ticketed for driving on a
suspended license, (2) on March 18, 2019, Defendant broke
into his ex-girlfriend's place of employment, (3)
Defendant failed to truthfully answer inquiries from his
probation officer, and (4) Defendant failed to make any
efforts to seek lawful employment. On June 4, 2019, an
amended violation report was filed indicating that a warrant
had been issued for the conduct alleged in violation
2-including breaking and entering with intent in violation of
Mich. Comp. Laws § 750.110, aggravated stalking in
violation of Mich. Comp. Laws § 750.411i, false report
of a felony in violation of Mich. Comp. Laws § 750.411a,
malicious destruction of property in violation of Mich. Comp.
Laws § 750.380(4)(a), and domestic violence in violation
of Mich. Comp. Laws § 750.81(2).
The
Court held a supervised release violation hearing on May 8,
2019 and June 6, 2019. At the hearing, the Government called
Detroit Police Officers Hassine Mahfouz and Joseph
Lennis-Saunders and Detroit Police Sergeant John Stewart.
The
Government also subpoenaed Carla Redmond, Defendant's
ex-girlfriend, to appear and testify at the hearing. Redmond
appeared for the hearing but declined to testify. Redmond
indicated that if she were called to testify, she intended to
invoke her Fifth Amendment right against self-incrimination.
Defendant objected to the introduction of Redmond's
hearsay statements through the testimony of Mahfouz,
Lennis-Saunders and Stewart. After considering the
parties' arguments and reviewing the relevant authority,
the Court engaged in the balancing test required by Rule
32.1(b)(2)(C) of the Federal Rules of Criminal Procedure and
determined that the Defendant's interest in confronting
Redmond was outweighed by the Government's interest in
proceeding with reliable hearsay evidence in light of
Redmond's refusal to testify. The Court therefore
overruled the Defendant's objection.
Mahfouz
testified that he was working on March 18, 2019, when he was
directed to respond to a 911 call, made at 3:56 p.m. Mahfouz
testified that he listened to the 911 call prior to
responding. During the call, Redmond told the operator that
her ex-boyfriend, Juwan, was at her place of employment,
Liberty Tax, located on Gratiot in Detroit. Redmond told the
operator he “busted the windows” and
“he's up here right now.” While Redmond is
speaking with the operator, Defendant can be heard banging
louder and louder on the door, shouting at Redmond until
glass shatters. When Defendant enters the building, Redmond
can be heard yelling and eventually screaming “get away
from me” numerous times.
Mahfouz
was also shown video footage taken from inside the Liberty
Tax building. Glass is seen strewn about the floor. Redmond
can be seen pacing inside while carrying a firearm. Mahfouz
corroborated that the video footage accurately depicted the
damage done to the building. When Mahfouz arrived on the
scene, he spoke with Redmond. He described her as very upset
and distraught. She told him that Defendant first used his
closed fist to try and break down the door. He went back to
his car and returned with a large rock and proceeded to
strike it against the door. Even though she had shot the
Defendant during the incident, Redmond failed to advise
Mahfouz of this fact.
Lennis-Saunders
testified that he was also working on March 18, 2019. He was
dispatched pursuant to a domestic violence and destruction of
property call. He also responded to the scene and spoke with
Redmond, who told him her ex-boyfriend had broken the windows
at her job. He observed that she appeared distraught and
scared. She indicated that a couple of days before Defendant
had assaulted her. Lennis-Saunders could still see bruising
around her eyes. Redmond likewise failed to mention to
Lennis-Saunders that she had shot the Defendant during the
incident.
Sergeant
Stewart testified that he learned Defendant had been shot and
the statements he had given to law enforcement were
“sketchy.” Ultimately, Stewart was able to
connect the shooting with the incident on March 18, 2019 at
Liberty Tax. On March 27, 2019, he returned to the store and
spoke with Redmond. After he read Redmond her
Miranda rights, she provided a statement. Redmond
indicated in her statement that “Juan [sic] was
breaking the windows in front of my job. Then went to the car
and grabbed something and broke the door. Then I ran back to
the office and he ran into the building and chased me into
the office. I took my gun and pointed at him and fired one
shot.” Gov. Ex. 4. She stated that she shot at the
Defendant because “he was about to beat me.”
Id. She further noted that “he beat me a week
before that Wednesday.” Id.
II.
LAW & ANALYSIS
A.
Hearsay
The
Government maintains that it has established by a
preponderance of the evidence that Defendant violated the
conditions of his supervised release by committing a breaking
and entering with intent to commit a felony in violation of
Mich. Comp. Laws § 750.110. The Government further
asserts that Defendant committed aggravated stalking in
contravention of Mich. Comp. Laws §
750.411i.[1] Defendant counters that the
Government's proof relies heavily on Redmond's
out-of-court statements, which are not reliable. Defendant
maintains that the Court cannot consider these hearsay
statements without violating Defendant's due process
rights.
Neither
the Federal Rules of Evidence nor the Sixth Amendment applies
to supervised release violation hearings. See Fed.
R. Evid. 1101(d)(3); United States v. Kirby, 418
F.3d 621, 627-28 (6th Cir. 2005). Hearsay evidence is
admissible in revocation hearings as long as it is reliable
and “the defendant's need for confrontation is
outweighed by the government's ground for not requiring
confrontation.” United States v. Waters, 158
F.3d 933, 940 (6th Cir. 1998).
While
Defendant does not have a Sixth Amendment right to confront
adverse witnesses, he does possess a limited confrontation
right under Fed. R. Crim. P. 32.1(b)(2)(C), which provides a
defendant subject to supervised release revocation “an
opportunity to . . . question any adverse witness unless the
court determines that the interest of justice does not
require the witness to appear.” Fed. R. Crim. P.
32.1(b)(2)(C). The Advisory Committee Notes to Rule
32.1(b)(2)(C) state that a district court must “balance
the person's interest in the constitutionality guaranteed
right to confrontation against the government's good
cause for denying it.”
In this
case, the Government subpoenaed Redmond, who appeared at the
hearing and declined to testify. The Government therefore did
all that it could to secure Redmond's testimony at
Defendant's hearing. This establishes good cause. See
United States v. Hall, 419 F.3d 840, 846 n.4 (9th Cir.
2005) (finding good cause where the government could not
locate the domestic violence victim who was homeless and
noting “[t]he difficulty of securing the testimony of
domestic violence victims … against their batterers is
well recognized.”); United States v. Martin,
382 F.3d 840 (8th Cir. 2004) (concluding the government
established good cause for failing to produce domestic
violence victim at revocation hearing because she repeatedly
stated she would not testify); United States v.
Carthen, 681 F.3d 94 (2d Cir. 2012)(finding good cause
where the victim informed the government attorney on the day
of the hearing that she would “risk going to jail if
she were called to testify and refused.”).
Additionally,
the hearsay evidence was reliable in this matter. As an
initial matter, Redmond's statements during the 911 call
fall under the excited utterance exception to the hearsay
rule because they were made contemporaneous with a very
stressful event. “[A] statement made while a declarant
is under the stress of excitement from a startling incident
contains ‘inherent guarantees of
truthfulness.'” United States v. Dobson,
529 Fed.Appx. 536 (6th Cir. Jun. 27, 2013) (citing
Haggins v. Warden, Fort Pillow State Farm, 715 F.2d
1050, 1057 (6th Cir. 1983)); United States v.
Jessie, 2:13-cr-253, 2015 U.S. Dist. LEXIS 12653, (S.D.
Ohio Sept. 22, 2015)(finding statements made during 911 call
fell within “excited utterance” exception because
the callers were reporting “a traumatic event”
which had occurred minutes “before there was time to
contrive or misrepresent, while [she was] still in a
distraught condition.”)
In this
case, Redmond was reporting that her ex-boyfriend, Juwan, had
come to her place of employment, busted windows and ignored
her requests that he leave her alone. Redmond tells the
operator that “he is here right now” and loud
banging and yelling can be heard in the background. Near the
end of the call glass shattering can be heard when Defendant
entered the premises. At that point, Redmond frantically
repeated and eventually screamed “leave me
alone.” This was without question an “event
startling enough to cause nervous excitement.”
Jessie, 2015 U.S. Dist. LEXIS 126754, at *13-14
(citing United States v. Arnold, 486 F.3d 177, 184
(6th Cir. 2007)). Moreover, Redmond made the ...