United States v. Kittrell

269 F. App'x 338
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 17, 2008
Docket06-5265
StatusUnpublished
Cited by2 cases

This text of 269 F. App'x 338 (United States v. Kittrell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kittrell, 269 F. App'x 338 (4th Cir. 2008).

Opinion

PER CURIAM:

Following a jury trial, Kenneth Leroy Kittrell was found guilty of one count of bank robbery, in violation of 18 U.S.C. § 2113(a) (2000). Kittrell was sentenced to 216 months’ imprisonment, and ordered to pay $2520 in restitution and a $5000 fine. On appeal, Kittrell asserts the admission of a photograph violated Fed. R.Evid. 404(b) and challenges the sufficiency of the Government’s evidence. We have reviewed the record and, finding no error, we affirm.

Taken in the light most favorable to the Government, Evans v. United States, 504 U.S. 255, 257, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), the evidence presented at trial established the following facts. On July 20, 2004, a robber entered a Wachovia Bank branch in Raleigh, North Carolina, and handed teller Lisa Roycroft a deposit slip, on the back of which was written, “This is a stick up. Put all the 100’s and 20’s on the top.” According to Roycroft, the robber was an older black man, with gray hair, a receding hairline, and facial hair. Roycroft also noted the robber appeared unclean and was wearing a dirty white T-shirt. At trial, Roycroft identified Kittrell as the robber.

In responding to the crime scene, the police secured the demand note and dusted it for fingerprints. Five latent fingerprints of value were found on the two-sided demand note. Latent footwear impressions found near Roycroft’s teller station were photographed and documented. Submission of the fingerprints to North Carolina’s automated fingerprint identification system yielded twelve potential matches. Because one of these matches was “very consistent” with the recovered print, the print examiner retrieved the corresponding fingerprint card, which belonged to Kittrell. The examiner concluded the recovered print was that of the *340 middle finger on Kittrell’s right hand. Further analysis revealed that three of the five latent fingerprints of value left on the demand note matched Kittrell.

Having identified a possible suspect, Detective Timothy Fanney of the Raleigh Police Department examined Kittrell’s police record. Fanney compared a photograph of Kittrell the department had on file, which was taken in April 2004 — approximately three months before the robbery — with still photographs from the bank’s video surveillance. Fanney immediately noticed physical similarities between the April 2004 photo of Kittrell and the surveillance photos. Fanney sought and obtained a warrant for Kittrell’s arrest.

The warrant was executed and Kittrell detained at a local Motel Six. Upon seeing Kittrell, Fanney observed that Kittrell’s appearance was different from that of his April 2004 photograph. Fanney obtained consent from Angela Lane, the motel manager, to search the motel’s dumpster. In the dumpster, Fanney found a pah' of sneakers, a white T-shirt, and a pair of gray sweat pants. Fanney recognized this clothing from the surveillance video as that which the robber wore. In comparing the latent footwear impression discovered on the floor in front of Roycroft’s teller station to the sneakers, the print examiner concluded the impression was made by the recovered right sneaker.

Angela Lane testified that she spoke to Kittrell on July 20, the day of the robbery. Lane described Kittrell as an older black man, with a receding hairline, a beard, and a mustache. Lane stated that though Kittrell appeared scruffy and dirty when she spoke with him prior to the occurrence of the robbery, Kittrell had shaved his beard and his head and was wearing clean clothes when she saw him later that day. Lane identified the white T-shirt and sweat pants recovered from the dumpster as the clothes Kittrell wore on July 20.

DNA testing was ordered on the clothing seized from the dumpster. Kristin Meyer, a DNA analyst with the North Carolina State Bureau of Investigation, concluded Kittrell could not be eliminated as a contributor to the DNA found in almost all of the samples taken from the clothing. In addition to linking Kittrell to the robbery via photographic, testimonial, and DNA evidence, the Government also presented the testimony of a questioned documents examiner who opined there was “strong evidence” that Kittrell wrote the demand note.

Prior to trial, the Government provided notice of its intent to introduce the April 2004 photograph of Kittrell. Kittrell opposed this, arguing the photograph should be precluded pursuant to Fed.R.Evid. 404(b). Finding the photograph relevant, reliable, and necessary for purposes of establishing Kittrell’s identity, the district court denied Kittrell’s motion.

At the close of the Government’s evidence, Kittrell moved the court for a judgment of acquittal, which the district court denied. The jury found Kittrell guilty of the charged offense, and Kittrell was sentenced to 216 months’ imprisonment. This appeal followed.

Kittrell raises two issues on appeal. First, Kittrell maintains the district court violated Fed.R.Evid. 404(b) in admitting the photograph of Kittrell taken in April 2004. Next, Kittrell maintains the Government’s evidence of his guilt was legally insufficient to support the conviction. We address each contention in turn.

I. Admixtión of April 200h Photograph

In this first assignment of error, Kittrell asserts the admission of the April 2004 photograph violated Fed.R.Evid. 404(b) *341 because the photograph was taken in conjunction with Kittrell’s prior arrest. According to Kittrell, admission of this photograph, “constituted an improper comment on Kittrell’s earlier involvement with the police.”

This court reviews the admission of evidence for an abuse of discretion. United States v. Midgett, 488 F.3d 288, 297 (4th Cir.2007). Evidentiary rulings are also subject to review for harmless error under Federal Rule of Criminal Procedure 52, and will be found harmless if the reviewing court can conclude “without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” United States v. Brooks, 111 F.3d 365, 371 (4th Cir.1997) (internal quotations and citation omitted).

Rule 404(b) of the Federal Rules of Evidence prohibits the admission of evidence of “other crimes” solely to prove a defendant’s bad character, but such evidence may be admissible for other purposes, such as “‘proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Bonner
648 F.3d 209 (Fourth Circuit, 2011)
United States v. Bonner
735 F. Supp. 2d 405 (M.D. North Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
269 F. App'x 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kittrell-ca4-2008.