NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0691n.06

Case No. 19-5956

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARTY K. TUTTLE,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

TENNESSEE

BEFORE: DAUGHTREY, DONALD, and READLER, Circuit Judges. 

BERNICE BOUIE DONALD, Circuit Judge. Marty K. Tuttle appeals his conviction of 

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Tuttle argues that 

the government violated his Sixth Amendment Confrontation Clause rights by playing a video at 

trial that contained testimonial out-of-court statements, without making the declarant available for 

cross-examination. We disagree and AFFIRM. 

I. BACKGROUND

On September 30, 2018, Marty K. Tuttle was sitting in the front passenger seat of a vehicle 

parked at a gas station in Tazewell, Tennessee. The driver, Danny King, was under the hood of 

the vehicle making repairs. Tazewell Police Department Officer Jason Pabon, recognizing King 

as a person wanted for multiple outstanding warrants, approached the vehicle. During King’s

initial conversation with Officer Pabon, he denied that he was the subject of the warrants. Officer 
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Pabon told King that he knew the truth about his identity, proceeded to frisk him, and place him

in handcuffs.

While talking with King, Officer Pabon saw Tuttle’s left arm moving towards the driver’s 

back-seat area. Officer Pabon pulled out his taser, pointed it at Tuttle, and told him to stop 

reaching. Officer Pabon then instructed Tuttle to place his hands on the dash, and Tuttle complied. 

After Officer Pabon placed King in the back seat of the police vehicle, he returned to search King’s

vehicle with a flashlight. Through this search, Officer Pabon noticed the grip of a pistol on the 

floorboard, between driver’s seat and the back seat. 

Office Pabon walked around the car, opened the passenger door, and removed Tuttle from 

the car. As Tuttle was getting out of the passenger seat, a beer can fell to the ground. Tuttle was 

subsequently placed in handcuffs and read his Miranda rights. Officer Pabon told Tuttle that he 

observed him reaching for the firearm, but Tuttle denied this, stating that he was reaching for his 

beer. 

Officer Tyler Williams arrived at the scene and searched the car. He found a plastic box 

of ammunition underneath the front passenger seat and a firearm behind the driver’s seat. Neither 

Tuttle’s fingerprints nor his DNA were on the gun or the box of ammunition. However, the letters

“M” and “T” were on the plastic ammunition box, and the bullets—0.380 caliber—matched the 

bullets in the firearm. When Officer Pabon asked King about the firearm, he replied that it did not 

belong to him. King then stated his name and said that the gun belonged to Tuttle, as he had 

previously seen him with the firearm. Tuttle was charged with one count of felon in possession of 

a firearm, and one count of possessing ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). 

The case proceeded to trial. 
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At trial, the government presented testimony from three witnesses other than King: Officer 

Pabon; Officer Williams; and Tuttle’s cellmate at Blount County Jail, Craig Lodge. The police 

officers testified about the night of Tuttle’s arrest. Officer Pabon described seeing Tuttle reaching 

in the back seat, while Officer Williams testified about finding the firearm behind the driver’s seat. 

Lodge further testified that Tuttle told him he had a gun in his belt prior to his arrest and tried to 

toss it in the trunk because the back seat was partially down. 

The government also introduced body-camera footage during Officer Pabon’s 

examination. Tuttle’s counsel did not object to the admission of the video or attempt to have

King’s statements excluded. Counsel also told jurors during his opening statement that they would 

“see Danny King deny that he knew a gun and ammunition were in his car.” Counsel asked jurors 

to pay attention to King’s statements and to see “how many times King changed his story in 

response to officer questions that night.” At closing, the government told the jury that King’s 

statements are not important. Tuttle’s counsel brought up King’s statements in his closing 

argument, encouraging the jury to focus on King’s calculated behavior. The jury returned a guilty 

verdict on the firearm offense, and the district court sentenced Tuttle to 63 months’ imprisonment. 

Tuttle has timely appealed.

II. ANALYSIS

Violations of the Confrontation Clause are subject to harmless-error analysis. McCarley 

v. Kelley, 801 F.3d 652, 665 (6th Cir. 2015) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 

(1986)). We first determine if the objection to the violation was waived or forfeited. United States 

v. Koeberlein, 161 F.3d 946, 948 (6th Cir. 1998). Forfeiture occurs when the defendant fails “to 

make the timely assertion of a right.” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). On the other hand, waiver is the “intentional 
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relinquishment or abandonment of a known right.” Id. This Court declines to review waived 

arguments on appeal. United States v. Denkins, 367 F.3d 537, 543–44 (6th Cir. 2004). 

When a defendant has forfeited an argument, we review it for plain error. United States v. 

Martinez, 588 F.3d 301, 313 (6th Cir. 2009) (citing United States v. Hadley, 431 F.3d 484, 498.

(6th Cir. 2005)). To succeed on plain-error review, a party must show: “(1) error, (2) that is plain, 

(3) that affects substantial rights.” Fed. R. Crim. P. 52(b); United States v. Collins, 799 F.3d 554, 

576 (6th Cir. 2015). “If all three conditions are met, an appellate court may then exercise its 

discretion to notice a forfeited error, but only if [ ] the error seriously affected the fairness, integrity 

or public reputation of the judicial proceedings.” Collins, 799 F.3d at 576 (quoting United States 

v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007)). The defendant bears the burden of persuasion 

with respect to showing prejudice. Olano, 507 U.S. at 734. 

Since Tuttle did not object to the admission of the video on Confrontation Clause grounds 

at trial, we deem it to be forfeited and review his claim for plain error.

1 There is no dispute that

Tuttle had no opportunity to cross-examine King. The issue before us today is whether King’s

statements to the police identifying Tuttle as the owner of the gun were testimonial hearsay, and 

whether the district court committed plain error in admitting that evidence.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy 

the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend. VI. Under 

the Confrontation Clause, a testimonial statement of a witness who does not testify at trial cannot 

be introduced for its truth unless: (1) the witness is unavailable; and (2) the defendant had a prior 

opportunity to examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). The 

protections under the Confrontation Clause apply if the statement is both: testimonial and made to 

1 Since Tuttle forfeited his objection, we decline to address the government’s assertion that counsel may waive an 

accused’s right to confront witnesses under the Confrontation Clause. 
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establish the truth of the matter asserted. Id. at 59-60, 68. Non-testimonial statements, or 

statements that are made for other purposes, are not protected under the Confrontation Clause. Id.

at 59 n.9; United States v. Gibbs, 506 F.3d 479, 486 (6th Cir. 2007); see United States v. King, 865 

F.3d 848, 85052 (6th Cir. 2017). 

The Supreme Court has outlined which statements, particularly when made to the police, 

are testimonial. “Statements taken by police officers in the course of interrogations are . . . 

testimonial.” Crawford, 541 U.S. at 52. However, not all statements made to police officers are 

testimonial. The Supreme Court in Davis v. Washington, 547 U.S. 813 (2006), clarified that 

statements made in response to interrogation can be nontestimonial if they are made “to meet an 

ongoing emergency.” Id. at 822. Alternatively, when the objective purpose of the interrogation is

“to establish or prove past events potentially relevant to later criminal prosecution,” the statement 

is testimonial. Id. Volunteered, informal statements can be testimonial if “a reasonable person in 

the declarant's position would anticipate his statement being used against the accused in 

investigating and prosecuting the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.

2004). 

The Court in Davis found that the declarant's statements were not testimonial because the 

declarant: (1) “was speaking about events as they were actually happening, rather than descri[bing]

past events”[;] (2) “was facing an ongoing emergency”[;] (3) was asked questions “necessary to 

be able to resolve the present emergency, rather than simply to learn . . . what had happened in the 

past” [;] and (4) the questioning took place in an informal setting. Davis, 547 U.S. at 827 (internal 

quotations marks and citations omitted). In contrast, the declarant in the companion case made

statements deemed testimonial because there was no emergency in progress at the time of the 

interrogation, and the officer who questioned him “was not seeking to determine . . . ‘what is 
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happening,’ but rather ‘what happened.’” Id. at 830. Additionally, “the primary, if not indeed the 

sole, purpose of the interrogation was to investigate a possible crime.” Id.

We find King’s statements to be testimonial. “An objective analysis of the circumstances 

of an encounter and the statements and actions of the parties to it provides the most accurate 

assessment of the ‘primary purpose of the interrogation.’” Michigan v. Bryant, 562 U.S. 344, 360 

(2011). Here, there was no ongoing emergency, and the primary purpose of King’s statements 

was to establish past events that were relevant in a criminal prosecution. Officer Pabon repeatedly 

asked King questions about the gun and to whom it belonged. A reasonable observer would have 

thought that the primary purpose of Officer Pabon’s interrogation of King was to determine gun 

ownership, as this would indicate that there was illegal possession of a firearm. We also find that 

the statements were offered for the truth of the matter asserted. The government introduced the 

statements into evidence through body-camera footage of Officer Pabon and used the entirety of 

the footage, including those statements, to prove that the firearm belonged to Tuttle. At closing, 

the government stated that “Danny King is not the best witness to come testify before you. Officer 

Pabon’s camera is . . . .” R. 46, Trial Tr., Page ID# 3779. Accordingly, King’s statements were 

offered for the truth of the matter asserted and are hearsay. 

Having determined that the district court plainly erred in admitting King’s statements, we 

next ask whether their admission affected Tuttle’s substantial rights. We find that it did not. The 

Supreme Court has clarified that to affect substantial rights, “an error must have ‘substantial and 

injurious effect or influence in determining the . . . verdict.’” United States v. Dominguez Benitez, 

542 U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The burden 

is on the defendant to show “a reasonable probability that, but for the error, the outcome of the 

proceeding would have been different[.]” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
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(2016) (quoting Dominguez Benitez, 542 U.S. at 82). Tuttle fails to meet this burden. The 

information conveyed in King’s hearsay statements was already before the jury through other 

admissible evidence. The government presented the testimony of Officer Pabon, Officer Williams, 

and Tuttle’s cellmate. In its closing argument, the government also specifically told the jury not 

to focus on King’s statements. While we caution parties against introducing evidence and 

subsequently asking the jury to not rely on it, this error does not meet the Molina-Martinez

standard. See Molina-Martinez, 136 S. Ct. at 1343. King’s testimony should have been properly 

limited through instructions to the jury, or excluded altogether, in order not to confuse the jury. 

We find that Tuttle has not demonstrated that the government’s introduction of King’s statements

substantially affected his rights.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.