236 F.3d 777 (6th Cir. 2001), 99-5430, United States v Carter

Docket Nº99-5430
Citation236 F.3d 777
Party NameUnited States of America, Plaintiff-Appellee, v. Roquel Allen Carter, Defendant-Appellant.
Case DateJanuary 18, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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236 F.3d 777 (6th Cir. 2001)

United States of America, Plaintiff-Appellee,

v.

Roquel Allen Carter, Defendant-Appellant.

No. 99-5430

United States Court of Appeals, Sixth Circuit

January 18, 2001

Argued: August 1, 2000

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 98-00074, John T. Nixon, District Judge.

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S. Delk Kennedy, Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

C. Douglas Thoresen, ASSISTANT FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge[*]

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OPINION

KAREN NELSON MOORE, Circuit Judge.

A jury found Defendant-Appellant, Roquel Allen Carter, guilty of armed bank robbery in violation of 18 U.S.C. §a2113(d). The district court denied Carter's motions for judgment of acquittal and a new trial and sentenced him to eighty-four months of imprisonment, followed by five years of supervised release.

Although Carter now appeals his conviction on four grounds, we focus primarily on his claim that the prosecution deprived him of his right to due process and a fair trial under the Fifth Amendment when the prosecutor committed prosecutorial misconduct during closing arguments by misstating material evidence and accusing defense counsel of lying. Because we believe that the prosecutor committed misconduct that was sufficient to constitute plain error warranting reversal, we REVERSE the judgment of the district court and REMAND for a new trial.

I. BACKGROUND

On October 15, 1996, the Community First Bank of Hartsville, Tennessee (hereinafter "Hartsville Bank" or "the bank"), opened at 8:30 a.m., with four bank tellers, including Terri Lynn Halliburton, working at its customer windows. Sheila Cornwell was the bank's first customer. While pulling away from a carwash bay across the street before entering the bank, Cornwell saw a black male standing next to "a big green older model car." Joint Appendix ("J.A.") at 153. Cornwell testified that this man was wearing coveralls and appeared to be about "five seven, slender build .... [with] his hair .... braided with sprigs, spriggly braided hair sticking up about an inch maybe, half inch to an inch." J.A. at 153-54.

While teller Halliburton was assisting the second customer Kenneth Keller with his bank deposit, she noticed a black man in coveralls enter the bank and approach the desk. Shortly after Keller had arrived, Dwight Holder entered the bank and noticed the man in coveralls, who by then was approaching Halliburton's window. Holder described the man as a black man who was wearing "brown coveralls ... or tan-looking color coveralls. ... a baseball cap" and "pretty new looking boots" and who was "between 5-10 and six foot tall." J.A. at 322-23, 326, 343.

When the man in coveralls finally reached Halliburton's window, he handed her a note that "said a 100 and a 50 and a 20"; the other side of the note said "'You will be dead!'" J.A. at 416. Halliburton realized that she was the victim of a robbery and looked to Holder as if to say "'Help me, Dwight." J.A. at 417. Holder testified that he saw the hesitancy in Halliburton's face and looked at the man, at which point the man showed him what appeared to be the butt of a gun.

In response to the note from the man in coveralls, Halliburton gave the man a hundred-dollar bill, a fifty-dollar bill, and a twenty-dollar bill, to which the man responded "'Give it all to me. I have a gun.'" J.A. at 417. While reaching for more money, Halliburton pulled the bait money, setting off the silent alarm, but accidentally making "a gong noise to the middle drawer." J.A. at 418. The robber then took the $170 on the counter and walked out the front door.

After the robber exited, Holder stated aloud, "You have been robbed. ... Call the police." J.A. at 330-31. Holder then proceeded out the front door and saw "an older type car, [with] kind of a darkish green color" and "an Indiana tag" pull away. J.A. at 331-32. As Holder watched the car pull away, he screamed for someone to write the car's license plate numbers as he called them out; the numbers he called were "either 988831 or 988861." J.A. at 331, 342-43.

Meanwhile, Keller was driving on Highway 25 to return to his restaurant. While on the road, Keller observed a black male

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recklessly driving a big green car with an Indiana tag. When Keller arrived at his restaurant, he called 911 and reported the car to the police.

By then, the police had arrived at the bank, spoken to witnesses, and put out a broadcast of the vehicle description over the radio, a "Be on the Lookout" ("BOLO"). After hearing the BOLO, Officer Jerry Hickman of the Gallatin Police Department contacted Chief Hank Scruggs of the Hartsville Police Department and told the Chief that he thought he had run a check on the tag number of a car that fit the BOLO description just the night before. Officer Hickman had a practice of running checks on cars with out-of-state tags in the Lackey Circle area, which is a government housing project, to see if they were stolen. Officer Hickman testified that, in the early morning hours of October 15, 1996, he ran a check on an out-of state car that he saw with Indiana tag 99S6881 in the Lackey Circle area. This check revealed that the car was not stolen but showed no other information, as Officer Hickman was unable to process out-of-state tags fully.

After speaking with the Chief, Officer Hickman asked Detective Stanley Hilgadick of the Gallatin Police Department to try to locate the car in the Lackey Circle area. Detective Hilgadick did not locate the car in the area but heard from several people in the neighborhood that "Roquel Halcomb" drove the car. Because Detective Hilgadick had known Barbara Halcomb, Carter's aunt, for several years, he went to her home to ask her if she knew "Roquel Halcomb." Ms. Halcomb informed the Detective that Carter was the person who owned the car in question. The prosecution also contends that, during her interview on October 17, 1996, Ms. Halcomb viewed a videotape taken at a Citgo station in Hartsville, Tennessee, on October 15, 1996, and identified Carter as an individual walking past the cashier in the videotape. J.A. at 186-87, 193-94. Ms. Halcomb, however, testified that she did not identify Carter in the videotape. J.A. at 183-84. On cross-examination, defense counsel elicited further information from Officer Russ Pulley about Ms. Halcomb's alleged identification of Carter in the videotape. Officer Pulley's testimony revealed that, contrary to a frequently used police procedure, Ms. Halcomb did not sign or affirm any written statement to indicate that such an identification had been made.

With the information Detective Hilgadick received from Ms. Halcomb, the Gallatin Police Department issued a BOLO, which listed information about Carter, including his height, weight, and address in Gallatin, as well as the names of his family members in Indianapolis, Indiana. The BOLO also stated that Carter was a suspect in two robberies and a shooting and had failed to appear for a warrant against him in Indianapolis.

Further into their investigation, the police received more information from Kathleen Ford, an employee at the Citgo gas station in Hartsville, who claimed to have seen a suspicious looking black man at the Citgo station on the morning of the robbery. Specifically, Ford told the Chief that, early in the morning on October 15, 1996, she had seen a black man between five feet, three inches and six feet tall and with curly hair, come into the market; go to the men's room where he stayed for fifteen to twenty minutes; leave the store without purchasing anything; get into an old model, green car; and begin to dress in gold coveralls. Recordings from a surveillance camera in the Citgo market corroborated Ford's testimony, showing a black man, who was wearing a dark-colored jacket with letters on its front, enter and leave the Citgo market as described.

A check with the Indiana authorities revealed that the green car with license number 99S6881 was registered to Rose Colwell from Indianapolis, who testified at trial to selling her car to "Rock Carter" on August 29, 1996. J.A. at 97. She also testified that she let "Rock Carter" borrow her tags while he repaired the car, and

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that he promised to bring the tags back but never did.

On October 17, 1996, Sergeant James Lanier was patrolling near White House, Tennessee, and saw a black male driving a green car that matched the description of a BOLO he received in connection with a robbery. Sergeant Lanier testified that he ran the tag number of a car, which was Indiana tag 99S6881; followed the car; and later approached the driver at a gas station. The man, however, fled from Lanier and successfully escaped in his green car. At trial, Sergeant Lanier identified Carter as the man he had chased in White House. On the night of the chase, however, Sergeant Lanier identified Terry Johnson, not Carter, as the man who had fled from him. Sergeant Lanier had identified Johnson from a photograph that was provided to him by the authorities in Simpson County, Kentucky after he had called in to report his chase in White House. J.A. at 634, 643. Additionally, Sergeant Lanier's written report of the chase failed to mention that he had observed an Indiana license plate or a license number and did not identify 99S68881 as an observed license number. J.A. at 637-38.

On October 18, 1996, after receiving a "suspicious person" call from the Best Western Hotel in Riverside, Alabama, Officer Rick Oliver went to the hotel where he found a young black man asleep in a green car. After some conversation with the young man, Officer Oliver began a pat-down for weapons. In the middle of the pat-down, however, the man fled with his gun -- initially on foot and then eventually in a...

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