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United States v. Mcgraw

October 27, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANDRE MCGRAW, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/SHIRLEY)

MEMORANDUM AND ORDER

This criminal case is before the Court on defendant's Objections to the Report and Recommendation of August 11, 2006 [Doc. 94]. On August 11, 2006, United States Magistrate Judge C. Clifford Shirley filed a Report and Recommendation ("R&R") [Doc. 91] in which he recommended that the following motions filed by defendant be dismissed: Pro Se Motion to Suppress [Doc. 30]; and Motion to Suppress Evidence Obtained at Apartment 285G Morningside Apartments [Doc. 57]. The government has filed a response to defendant's objections [Doc. 95] and defendant has filed a reply [Doc. 96].

As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R&R to which defendant has objected. The Court has carefully reviewed Judge Shirley's R&R, the underlying pleadings [Docs. 30, 57, 58, 59, 60, 63, 64, 87, 89], the parties' briefs regarding the pending objections [Docs. 94, 95, 96], and the transcript of the hearing before Judge Shirley [Doc. 83]. For the reasons set forth herein, defendant's objections will be overruled.

Defendant first objects to Judge Shirley's finding that defendant stated that Officers Dururvurur and Neal, Investigator Bell, and Detective Huckelby went to the Morningside Garden Apartments and found defendant's sister, Lavern McGraw-Smith, at home. Defendant argues that in his post-hearing brief [Doc. 87], defendant "clarified that after seeing Detective Huckelby in court on June 23, 2006, the officer that [defendant] believed to be Detective Huckelby was not Detective Huckelby." [Doc. 94 at 2.] The government asserts that "[d]efendant's clarification in his brief does not change his sworn testimony to the contrary at the hearing." [Doc. 95 at 2.] Just as a party cannot create a factual issue by filing an affidavit which contradicts earlier given testimony, Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986), defendant cannot attempt to modify the testimony he gave at the hearing before Judge Shirley with a later-filed brief. Judge Shirley accurately recounted defendant's hearing testimony in the R&R. This objection is therefore overruled.

Defendant next objects to Judge Shirley's finding that the officers informed Ms. McGraw-Smith that they were investigating something that occurred outside and that they were looking for someone who may have lived with her. [Doc. 94 at 3.] The government contends that Judge Shirley accurately recounted the testimony on the matter [Doc. 95 at 3.] After carefully reviewing the relevant portions of the transcript, the Court agrees with Judge Shirley's account of the testimony of Officer Neal, in which he stated that he told Ms. McGraw-Smith that the officers "were looking for someone that may have lived with her." [Doc. 83 at 29.] Defendant's objection is therefore overruled.

Defendant next objects to Judge Shirley's finding that Officer Neal did not have trouble communicating with Ms. McGraw-Smith. [Doc. 94 at 3.] The government argues that Judge Shirley correctly recounted the testimony on the matter. [Doc. 95 at 3.] After reviewing the relevant portions of the transcript, the Court agrees with Judge Shirley's account of the testimony of Officer Neal, in which he stated, "[i]f [Ms. McGraw-Smith] had any trouble communicating, any speech disruptions or anything like that, I detected none of those." [Doc. 83 at 20.] In general, the Court notes that Judge Shirley had the opportunity to observe the witnesses, including Officer Neal, and assess their credibility and the Court will not second-guess Judge Shirley's determination as to the credibility of witnesses. Accordingly, this objection is overruled.

Defendant next objects to Judge Shirley's failure to note that Officer Neal did not record any field notes of the incident and argues that this is relevant as it "tends to diminish the officers' credibility." [Doc. 94 at 3.] The government asserts that Officer Neal's failure to record field notes was due to his being assigned as a Field Training Officer who was designated to observe other officers and not complete reports and therefore does not impact his credibility. [Doc. 95 at 4.] In the R&R, Judge Shirley noted that there was no recording of the incident in question [Doc. 91 at 6], but did not discuss the reasons for Officer Neal's failure to make a report. Upon review of the transcript, the Court notes that Officer Neal testified that he was serving as a Field Training Officer on the day of the incident and was only observing the activities of Officer Duruvurur. [Doc. 83 at 6-7, 40.] The Court therefore agrees with the government that Officer Neal's failure to record field notes does not impact his credibility in any way. Finding no error in Judge Shirley's omission to discuss why Officer Neal to not record any field notes, defendant's objection is overruled.

Defendant next objects to Judge Shirley's finding that Officer Neal spoke firmly but did not yell at Ms. McGraw-Smith. [Doc. 94 at 4.] The government argues that Judge Shirley's conclusion is supported by the record [Doc. 95 at 4.] After careful review of the relevant portions of the transcript, the Court finds no error with Judge Shirley's determination that "[Officer] Neal's tone of voice was firm, but he did not yell at McGraw-Smith" in telling her that "he could put her in jail" for failing to inform the officers that defendant was in the bathroom at the time they searched her apartment. [Doc. 91 at 16.] Defendant's objection is therefore overruled.

Defendant next objects to Judge Shirley's finding that defendant did not protest the search of her apartment. [Doc. 94 at 4.] Upon review of the relevant portions of the transcript, the Court agrees with Judge Shirley's account of defendant's arrest and notes that there is no indication in the record that defendant protested the search of his sister's apartment or was removed from the apartment to be prevented from protesting the search. Instead, the transcript reflects that defendant was escorted out of the living room after telling the officers present that his sister did not know he was in the apartment because "she was asleep on the couch" when he came in. [Doc. 83 at 57.] Accordingly, defendant's objection is overruled.

Defendant next objects to Judge Shirley's determination that there was no evidence in the record suggesting that Ms. McGraw-Smith's means of entering or exiting her

apartment was blocked. [Doc. 94 at 5.] Careful review of the relevant portions of the transcript reveal no error in Judge Shirley's determination that "there is no evidence before the Court that the officers blocked her means of egress, either intentionally or by accident." [Doc. 91 at 25.] The defendant's objection is therefore overruled.

Defendant next objects to Judge Shirley's conclusions regarding Ms. McGraw-Smith's cognitive abilities as they pertain to her ability to consent to the search of her apartment. Specifically, defendant argues that Ms. McGraw-Smith was suffering from an impairment that impacted her communication and cognitive abilities the day of the incident [Doc. 94 at 5], that Ms. McGraw-Smith's consent to have her apartment searched for weapons after defendant's arrest was coerced [id. at 6], that Ms. McGraw-Smith's ability to enter into a lease agreement is irrelevant as to her competence to consent to the search [id.], and that Ms. McGraw-Smith's impairment resulted in her requiring constant care-taking [id. at 7].

As to Ms. McGraw-Smith's cognitive abilities, the government argues that defendant has presented no evidence that Ms. McGraw-Smith was suffering from a cognitive impairment at the time of the incident. [Doc. 95 at 5-6.] While a review of the transcript shows that during defendant's testimony, he discussed that his sister was "bludgeoned in the head with a blunt object" in Alabama in 1997 and that her mind "comes and goes," [Doc. 83 at 59, 62], there is no evidence in the record that Ms. McGraw-Smith was unable to understand the officers on the day in question. Accordingly, the Court finds no error with Judge Shirley's conclusion that "Ms. McGraw-Smith appeared to have no problem ...


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