United States v. Hall

• Decision Date: 10 March 2015
• Docket Number: CRIMINAL ACTION No. 06-20162-01-KHV,CIVIL ACTION No. 12-2097-KHV
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KEVIN TOMMIE HALL, Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff, v. KEVIN TOMMIE HALL, Defendant.

CRIMINAL ACTION No. 06-20162-01-KHV

CIVIL ACTION No. 12-2097-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

March 10, 2015

MEMORANDUM AND ORDER

On October 7, 2008, a jury found defendant guilty of armed bank robbery; using, carrying or brandishing a firearm during and in relation to a crime of violence; and possession of a firearm by a convicted felon. See Verdict (Doc. #104). On June 10, 2009, the Court sentenced defendant to 594 months in prison. See Judgment In A Criminal Case (Doc. #144). This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #184) filed February 16, 2012. For reasons stated below, the Court overrules defendant's motion.¹

Factual Background

On direct appeal, the Tenth Circuit summarized the trial testimony as follows:

At 1:36 p.m. on November 7, 2006, a masked man carrying a pistol-grip shotgun robbed the MidAmerican Bank and Trust in Leavenworth, Kansas. The robber had entered through a rear door, hurried to the teller station, and demanded money from teller Debbie Smith. Smith gave him money from several different drawers, including marked bills with prerecorded serial numbers. The robber put the money in a white plastic bag and left through the rear door. He walked briskly to a nearby parking lot, got in a car, and drove away.

Mary Garrison, who worked in a neighboring office building, was walking to her car to get a bottle of water when she noticed a white male sitting alone in the passenger seat of a four-door bluish gray car. She then saw a taller white male wearing dark clothing run to the car, get into the driver seat, and speed away. When the police arrived a "a minute or two" later, she described the car and told them the direction in which it had driven off. Trial Tr., Doc. 150 at 125.

At 1:41 p.m. the Lansing, Kansas, Police Department sent out an alert notifying officers of the bank robbery and describing the suspect vehicle as "a four-door blue vehicle occupied by two white males." Id. at 136. At 1:56 p.m., 20 minutes after the robbery, Manuel Olmos, a Lansing police officer, was driving in his marked patrol car when he saw a blue sedan with two white males coming toward him. He made eye contact with its occupants, and his eyes and theirs "just fixated on each other and . . . we just kept looking at each other . . . as we passed each other." Id. at 141. The officer turned his car around and began to follow the vehicle.

A chase ensued, with speeds exceeding 100 miles per hour. The blue sedan ran stop signs, sped through intersections, drove in emergency lanes to get around other vehicles, and passed a funeral procession at a high rate of speed.

Eventually, the blue sedan came to a stop in a parking lot in Kansas City, Kansas, after officers placed "stop sticks" in the road to deflate the car's tires. Id. at 191.

The vehicle's occupants were arrested at gunpoint. Mr. Hall was the driver and James Morrison was the passenger. The blue sedan was registered to Mr. Hall. Mr. Hall was clothed almost entirely in Harley-Davidson apparel; he was wearinga Harley-Davidson shirt, a pair of Harley-Davidson jeans, and black Harley-Davidson zip-up boots with a lace on top. He was also wearing a black belt with a large Harley-Davidson silver buckle on which a gold-colored eagle was depicted.

Several items related to the robbery were recovered along a rural gravel road on the route of the chase. One of the pursuing officers had noticed dark clothing lying by the side of the road and radioed its location. Another officer searched the area and found a black hooded sweatshirt and a pair of brown gloves.

Farther up the road, members of a Westar Energy crew installing overhead power lines had seen police cars pursuing a blue sedan. As the sedan raced by, the crew foreman observed that the passenger "looked like he was changing his shirt or something he was, kind of humped in the seat, his arms were like somebody was taking off a shirt or putting one on." Id. at 215. A crew member working in an aerial bucket when the sedan passed saw a black object fly out of the passenger-side window. Police searched the area and recovered a ski mask.

A forensic scientist was able to obtain a DNA profile from the mask that was consistent with Mr. Hall's DNA. Only 1 in 35,160 people would have a matching profile.

Another officer searching along the gravel road found a white plastic bag containing $14,440, including the marked bills from the bank. (A later audit of the teller's drawer showed that $14,541 had been taken.) On the bag was the Harley-Davidson logo and the address of a Harley-Davidson store in Blue Springs, Missouri. The day after the robbery, police officers discovered a dark, pump-action shotgun with a pistol grip in a roadside ditch by the gravel road.

After arresting Mr. Hall, officers searched his car and found in the back seat a receipt from a Wal-Mart in Lee's Summit, Missouri. The receipt showed that at 11:14 p.m. on November 6, 2006, the night before the robbery, someone had purchased a three-hole mask, cigarettes, and a pair of gloves. Surveillance footage from the store showed Morrison and Mr. Hall arriving at the Wal-Mart in the blue sedan at 10:50 p.m., both men entering and exiting the store, and Morrison purchasing the items listed on the receipt. Morrison was wearing a distinctive black-and-orange jacket, which police officers found in the back seat of Mr. Hall's car.

Officers also obtained surveillance tapes from the bank. One showed that Morrison had conducted a transaction at Smith's teller station only six minutes before the robbery. Morrison was wearing a Harley-Davidson hat.

* * *

To rebut the case against him, Mr. Hall presented an alibi defense. The predicate of the defense was that he was not positively identified by any witnesses at the robbery scene. We therefore summarize the eyewitness descriptions and other identification evidence before reciting his account of his whereabouts.

Mr. Hall is white and 6' 2" tall. At the time of his arrest he was 46 years old, weighed about 210 pounds, had a shaved head, and wore a mustache. Although most of the eyewitnesses were consistent in their descriptions of the robber as relatively slender, approximately six feet tall, and wearing dark clothing and a dark ski mask, and teller Smith said that he was wearing "a black belt with a silver buckle," id. at 79, there were some inconsistencies in the eyewitnesses' physical descriptions of the robber and not all descriptions matched Mr. Hall's true appearance.

One eyewitness described Mr. Hall as 5' 10" (but admitted that was just a guess), and another who admitted to seeing the robber for "[m]aybe about ten seconds," id. at 96, estimated that he was between 5' 7" and 5' 10" tall. One witness estimated that the robber weighed 165 pounds, while another described him as weighing between 175 and 200 pounds. At least two witnesses described the robber as young, though one based her opinion on the sound of his voice, and the other assumed that the robber was in his 20s "because he was so thin." Id. at 116. Three witnesses described the robber as having hair, but one admitted that what she thought was hair could have been a hat, another (who reported seeing hair coming out the back of the mask) testified that she saw the robber only for a matter of seconds before she got under her desk, and the third stated that because she "didn't see any long hair . . . coming out of the ski mask," she assumed that he had short hair. Trial Tr., Doc. 151 at 485. Also, neither of the witnesses who saw the robber after he had left the bank and rolled up the ski mask mentioned seeing a mustache. One witness indicated on a police form that the robber wore tennis shoes, although it was pointed out at trial that the tennis shoe was the only option on the form depicting a lace-up shoe above the ankle. Finally, two witnesses observed that the robber had a tan or dark complexion.

In addition, some of the forensic evidence did not implicate Mr. Hall. The government's expert identified two "possible" hairs inside the recovered ski mask, but did not conduct DNA tests on either of them. Id. at 403. She did find some DNA on the recovered shotgun, but both Mr. Hall and Morrison were eliminated as being its source. Further, the police were unable to find any fingerprints on the shotgun, and the recovered money was not examined for fingerprints.

Mr. Hall filed a notice of alibi defense one week before trial. It said that he would be the sole alibi witness and that at the time of the robbery he was "near a halfway house for recently released prisoners" in Leavenworth, Kansas. Suppl. R., Vol. 1 at 48. Given that he was seen driving the getaway car 20 minutes after the robbery, he needed to explain how he happened to enter the car in the interim.

His explanation was that the robber was a man named Lee, who (with Mr. Hall's permission) had driven off with Morrison about 45 minutes before the robbery and returned the car to Mr. Hall a few minutes after the robbery. [Hall] testified as follows:

In 1992 Mr. Hall pleaded guilty to a bank robbery committed in 1990. He remained incarcerated until he was released to a halfway house in Leavenworth, Kansas, in August 2005. A few days later he got a job as a welder, making from $600 to $700 per week. After three months in the halfway house, although still on supervised release, he moved to Topeka, Kansas, and lived with his mother before moving in with a girlfriend, Sherry Lorence. He bought a Harley-Davidson and a car. Mr. Hall incurred two DUI charges during the first half of 2006. As a result, his probation officer required him to wear an electronic monitoring bracelet and imposed an evening curfew. He lost his job in late September 2006 and borrowed money from his mother.

In early November 2006 Mr. Hall had a fight with Lorence. He

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