United States v. Roberts

579 F.Supp.3d 992

UNITED STATES of America, Plaintiff,

v.Sterling H. ROBERTS, Defendant.

Case No. 3:18-cr-032 (1)

United States District Court, S.D. Ohio, Western Division, at Dayton.

Signed January 12, 2022

Amy Marie Smith, Laura I. Clemmens, Kevin A. Koller, United States Attorney's Office, Dayton, OH, Sheila Gay Lafferty, United States Attorney's Office, Columbus, OH, for Plaintiff.

Donald J. Malarcik, Gorman, Malarick & Pierce, Akron, OH, James P. Fleisher, Bieser, Greer & Landis—3, Dayton, OH, for Defendant.

ENTRY AND ORDER DENYING MOTION IN LIMINE TO EXCLUDE EVIDENCE OF AN AUGUST 5, 2017 911 CALL FROM JAMESTOWN, OHIO.

THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

This matter comes before the Court pursuant to Defendant Sterling H. Roberts's motion to exclude evidence of an August 5, 2017 911 call by Robert Caldwell, who is deceased. Doc. 315. Because the present sense impression and excited utterance exceptions apply, Defendant's motion will be denied.

Background

Robert Caldwell was married to Sterling Roberts’ co-defendant, Tawnney Caldwell, from approximately 2009 to 2012. Following their divorce, Tawnney was awarded primary custody of their three minor children, and Caldwell was awarded visitation rights. In 2013, Tawnney began a romantic relationship with Sterling Roberts, with whom she had two additional children.

From 2013 to August 2017, Tawnney and Robert Caldwell engaged in a custody dispute stemming from Tawnney's frequent interference with Caldwell's visitation rights. The dispute was litigated in Montgomery County, Ohio Court of Common Pleas, Domestic Relations Division. See Caldwell v. Caldwell , 2011 DR 01381. In 2017, Caldwell filed a motion for temporary custody of the three children on the basis that Tawnney was then residing with Roberts, who was facing a felony weapons charge, had a history of substance abuse and had mental health issues. On May 2, 2017, the court ordered that Tawnney not allow Roberts to be in the presence of the minor children or to have any contact with the Caldwell's minor children.

On May 10, 2017, Robert Caldwell moved for a reallocation of parental rights. On July 19, 2017, the court found that a modification of custody was necessary to serve the best interests of the children. It ordered that Caldwell be designated the custodian and residential parent and that Tawnney have parenting time according to the court's standard order.

The court also repeated its prior order barring Sterling Roberts from having any contact with or being in the vicinity of the Caldwells’ minor children. Finally, the court discontinued Robert Caldwell's child support obligation and ordered Tawnney to begin paying child support.

On August 5, 2017, Roberts, with Tawnney's assistance, sent a series of text messages luring Caldwell to an abandoned farmhouse in Jamestown, Ohio. Roberts pretended to be "Debbie Brown" wanting to hire Caldwell. When Caldwell arrived near the farmhouse, Roberts attempted an ambush, brandished a firearm, and stated "what's up Bobby, you ready to die." (witness statement, Ex. B at 2.) Caldwell recognized Roberts, fled, and called 911. (Id. at 3.)

Caldwell's phone call with the 911 operator lasted two minutes and fifty-four seconds. (See 911 call, Ex. A.) On the call, Caldwell reports that he is currently being chased by a man who had just attempted to lure him out to Jamestown and that he assumes the man is trying to kill him. Caldwell states that he is driving on Sutton Road, that the man was right behind him in the car, and that he is afraid the man will pull a gun on him. At around the 1:00 minute mark, Caldwell reports that the man has stopped following him and is driving away at a high speed. Caldwell gives the operator a description of a car—a drop top Mitsubishi Eclipse with 30-day tags—and warns that the man is likely "armed and dangerous." In response to the operator's questions, Caldwell then identifies the man who was chasing him as "Sterling Roberts—he is my ex-wife's boyfriend and they just lost full custody of all our kids."

The operator then tells Caldwell that law enforcement officers will meet with Caldwell and get ahold of Roberts later. The operator asks where the police can meet Caldwell, to which he responds that he does not know where he is. Caldwell apologizes because he is "a little shooken up." After several attempts, he is able to give his location to the operator, who provides him instructions about where he can meet the Jamestown police. Before hanging up, Caldwell states, "I am going to call my wife and have her get my kids out of my house in Beavercreek."

While Caldwell was en route to the police station, Roberts texted him "You['re] a bitch bob," from the "Debbie Brown" phone number. (See affidavit, Ex. C at 5.) At the police station, Caldwell gave a three-page handwritten witness statement that identified Roberts by name and documented Roberts’ actions. (See witness statement, Ex. B.)

Two days later, on August 7, 2017, Caldwell signed a sworn affidavit that recounted Roberts’ attempt to lure him to the abandoned farmhouse. (See affidavit, Ex. C.) The affidavit noted that the Greene County Sheriff's department was investigating the matter and that Caldwell was cooperating with the investigation. Caldwell's affidavit was included in an August 8, 2017 ex parte motion filed in the Montgomery County custody case. (See ex parte motion, Doc. 354-3, Exhibit D.) That motion requested an immediate suspension of Tawnney's parenting time based on Roberts’ actions on August 5 and Roberts’ violation of the no contact order on August 4, when he pretended to be Tawnney's brother to induce a social worker to leave one of the minor children in his care. (Id. at 1–5.) The motion requested a hearing (see id. at 1), at which Caldwell's attorney anticipated Caldwell would testify. The motion was granted the same day, and Tawnney was served with the ex parte motion and order, including Caldwell's affidavit, on August 9, 2017. (See PageID 354-4.)

On August 8, 2017, Caldwell also filed a petition for a civil stalking protection order against Roberts in the Greene County Court of Common Pleas based on Roberts’ attempt to lure him to the abandoned farmhouse. (See PageID 354-5.) The court issued a protection order that day and set a hearing for August 21, 2017. (Id. at 7–10.) The Montgomery County Sheriff's Office was unable to serve Sterling Roberts with the order, however, as he went to Tennessee after the August 5 incident. (See id. at 12.)

On August 14, 2017, Roberts and Tawnney Caldwell traveled from Tennessee to Tawnney's parents’ home in Kentucky, before proceeding on to Dayton, Ohio. On August 15, 2017, Roberts waited for Caldwell outside of the Cornerstone Building in Riverside, Ohio where Caldwell and his minor children were attending a family counseling session. As Caldwell exited the building with his sons, Roberts is alleged to have emerged from a hiding spot behind a mailbox and to have fired multiple shots at Caldwell from behind. After Caldwell fell to the ground, Roberts allegedly stood over Caldwell and continued to fire shots into his body. Roberts allegedly fled the scene, and Caldwell was pronounced dead at approximately 6:11 p.m.

Analysis

Federal Rule of Evidence 803 sets forth several exceptions to the general prohibition that a declarant's out-of-court statement that is offered to prove the truth of the matter asserted is inadmissible hearsay. Fed. R. Evid. 803 ; see also id. 801, 802. Among the exceptions are present sense impressions and excited utterances, which apply regardless of whether the declarant is available as a witness. Id. 803(1), (2).

Present sense impressions are statements "describing or explaining an event or condition, made while or immediately after the declarant perceived it." Fed R. Evid. 803(1). The Sixth Circuit has held that 911 calls made within minutes of the event described in the call are sufficiently contemporaneous to qualify as both excited utterances and present sense impressions. United States v. Price , 58 F. App'x 105 (6th Cir. 2003) ; see also United States v. Davis , 577 F.3d 660, 668 (6th Cir. 2009) (statement admissible as a present sense impression and excited utterance where the witness "testified that she made the 911 call within thirty seconds to a minute after seeing Defendant"); Arnold , 486 F.3d at 185 (911 call admissible as excited utterance); United States v. Johnson , 509 F. App'x 487, 494 (6th Cir. 2012) (911 call, "made immediately after witnessing the described event," met the definition of a present sense impression under Rule 803(1) (internal quotation marks and alteration omitted)).

Pursuant to the excited utterance exception, "a court may admit out-of-court statements for the truth of the matter asserted when they relate to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." United States v. Arnold , 486 F.3d 177, 184 (6th Cir. 2007) (internal quotations omitted). To satisfy the exception, a party must show three things: (1) "there must be an event startling enough to cause nervous excitement;" (2) "the statement must be made before there is time to contrive or misrepresent;" and (3) "the statement must be made while the person is under the stress of the excitement caused by the event." Haggins v. Warden, Fort Pillow State Farm , 715 F.2d 1050, 1057 (6th Cir. 1983). The admissibility of the statements ultimately depends on "whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event."

Arnold , 486 F.3d at 184 (quoting Haggins , 715 F.2d at 1057 ). Statements made several hours after the underlying event may qualify as excited utterances if the declarant was still under the stress of the excitement at the time of the statement. See id. at 185 (collecting cases).

The 911 call here, made immediately after Roberts’ failed attempt to lure Caldwell to the farmhouse...