United States v. Kittrell , 269 F. App'x 338 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5265
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH LEROY KITTRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00261-H)
Submitted: February 13, 2008 Decided: March 17, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Long, POYNER & SPRUILL LLP, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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 (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
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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 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 pair
of sneakers, a white T-shirt, and a pair of gray sweat pants.
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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.
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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. Admission of April 2004 Photograph
In this first assignment of error, Kittrell asserts the
admission of the April 2004 photograph violated Fed. R. Evid.
404(b) because the photograph was taken in conjunction with
Kittrell’s prior arrest. According to Kittrell, admission of this
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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.’” United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir.
2004) (quoting Fed. R. Evid. 404(b)). Rule 404(b) is considered a
rule of inclusion; thus, evidence of prior acts is admissible under
Rules 404(b) and 403 if the evidence is: (1) relevant to an issue
other than the general character of the defendant, (2) necessary,
(3) reliable, and (4) if the probative value of the evidence is not
substantially outweighed by its prejudicial value. United States
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v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002); United States v.
Queen, 132 F.3d 991, 997 (4th Cir. 1997).
The district court did not abuse its discretion in
admitting the April 2004 photograph. The photograph was relevant
to the issue of identity, not Kittrell’s general character, and
necessary to the Government’s case. Moreover, the photograph was
reliable and its probative value was not outweighed by the
prejudicial effect.* United States v. Hill, 322 F.3d 301, 309 (4th
Cir. 2003).
II. Sufficiency of the Evidence
Kittrell next asserts the jury’s guilty verdict was not
supported by legally sufficient evidence. In support of this
argument, Kittrell emphasizes several purported deficiencies in the
Government’s evidence, namely, Roycroft’s in-court identification,
the lack of any other eyewitness testimony identifying Kittrell as
the robber, and the “inconclusive” nature of the DNA evidence.
This court reviews the district court’s decision to deny
a Rule 29 motion de novo. United States v. Smith, 451 F.3d 209,
*
Even if the district court did abuse its discretion in
admitting the April 2004 photograph, the error was harmless. The
evidence against Kittrell was significant. As this was not a close
case factually, we conclude with fair assurance that any error
regarding the admission of this photograph taken in the course of
Kittrell’s prior arrest did not affect the verdict. See Weaver,
282 F.3d at 313-14; United States v. Heater, 63 F.3d 311, 325 (4th
Cir. 1995).
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216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006). This court
reviews sufficiency of the evidence challenges by determining
whether, viewing the evidence in the light most favorable to the
Government, any rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). The court reviews both direct and
circumstantial evidence, and permits the “[G]overnment the benefit
of all reasonable inferences from the facts proven to those sought
to be established.” Tresvant, 677 F.2d at 1021.
In evaluating the sufficiency of the evidence, this court
does not “weigh the evidence or review the credibility of the
witnesses.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). Where the evidence supports differing reasonable
interpretations, the jury decides which interpretation to credit.
Id. (quotations omitted). This court will uphold the jury’s
verdict if there is substantial evidence to support it, and will
reverse only in those rare cases “where the prosecution’s failure
is clear.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997) (internal quotations omitted).
We reject Kittrell’s challenge to the sufficiency of the
evidence. Roycroft’s identification of Kittrell as the robber was
sufficient, and the jury was well within its province to credit her
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testimony. Moreover, the Government was under no obligation to
present any other eyewitness testimony.
Kittrell strenuously maintains the Government’s DNA
evidence was insufficient. Kittrell is correct in stating the DNA
did not link Kittrell to the clothing found in the motel dumpster
to the exclusion of all others. However, the DNA found on two of
the cuttings taken from the recovered clothing contained a mixture
of no more than two contributors, and Kittrell could not be
excluded as a contributor to that mixture. Further, the DNA found
on six of the cuttings contained a mixture of three or four
contributors, and Kittrell similarly could not be excluded as a
contributor from those mixtures. Contrary to Kittrell’s position,
the inconclusive nature of the DNA evidence obtained from the
recovered right sneaker is not fatal to the Government’s case.
The Government’s evidence of Kittrell’s guilt was ample.
In addition to the DNA evidence linking Kittrell to the recovered
clothing and Roycroft’s in-court identification, the Government’s
expert handwriting analyst testified the demand note was “probably”
written by Kittrell. Moreover, three of the five latent
fingerprints recovered from the demand note were identified as
Kittrell’s. Examination of the right sneaker recovered from the
motel’s dumpster revealed that particular sneaker left the latent
footwear impression lifted from Roycroft’s teller station. This
shoe was found with clothing containing a mixture of DNA, of which
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Kittrell could not be excluded as one of the no more than four
contributors. This evidence, although circumstantial, was more
than enough to support the jury’s guilty verdict, “even though it
[did] not exclude every reasonable hypothesis consistent with
innocence.” United States v. Osborne, __ F.3d __, 2008 WL 222739,
*7 (4th Cir. Jan. 29, 2008) (internal quotation marks and citation
omitted).
Accordingly, we affirm the district court’s judgment.
Further, we deny Kittrell’s motion for leave to file a pro se
supplemental brief challenging the constitutionality of his
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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