United States v. Moore

• Decision Date: 01 March 2013
• Docket Number: No. 11–5095.,11–5095.
• Citation: 709 F.3d 287
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tyrone MOORE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

709 F.3d 287

UNITED STATES of America, Plaintiff–Appellee,

v.Tyrone MOORE, Defendant–Appellant.

No. 11–5095.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 7, 2012.

Decided: March 1, 2013.

ARGUED:James Michael Nichols, Warnken, LLC, Towson, Maryland, for Appellant. Jefferson McClure Gray, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:Byron L. Warnken, Warnken, LLC, Towson, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Christopher J. Romano, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge GREGORY and Judge DAVIS joined.

OPINION

TRAXLER, Chief Judge:

A jury convicted Tyrone Moore of carjacking, using a firearm in furtherance of carjacking, and conspiracy. After the trial, Moore filed a motion for a new trial based, in part, on newly discovered evidence, but the district court denied it. Because the district court erred in denying Moore's motion for a new trial, we vacate and remand for a new trial consistent with this opinion.

I.

A.

In the early evening of November 25, 2007, Donald Roarty parked his Jeep Grand Cherokee on East 39th Street in Baltimore, Maryland to attend a meeting at a nearby church. When he exited his vehicle and began walking toward the church, he heard a voice behind him asking where he could find a “whatchamacallit.” When Roarty turned around, a man who was standing approximately five feet away pulled out a handgun and demanded the keys to Roarty's Jeep. Roarty complied by tossing the keys to the assailant, who subsequently drove off in the Jeep. Roarty then called the police to report the crime. The encounter lasted only twenty to thirty seconds. Because the assailant was wearing a hat and had a dark bandana over his face, Roarty could only see his eyes and dreadlocks showing below the hat.

Three days later, on November 28, 2007, Detective Brandon Underhill of the HarfordCounty Sheriff's Office, who was working in an undercover capacity at the time, met with Larry Pollin to conduct an undercover drug buy. Pollin arrived at the meeting place in a Jeep Grand Cherokee with three other people, and he and Detective Underhill exchanged money for crack cocaine. Detective Underhill could not determine who drove the vehicle to the drug buy, but he testified that Pollin drove the vehicle away. A surveillance unit of the sheriff's office working alongside Detective Underhill ran the plates and determined that the Jeep was registered to Donald Roarty. At the time, however, the sheriff's office was unaware that Roarty had reported the Jeep stolen. Therefore, after following the Jeep for 45 minutes to conduct surveillance after the drug sale, the sheriff's office terminated the encounter. The detectives involved in the drug buy were unable to identify the other three individuals in the vehicle.¹

Four days later, on December 2, 2007, Deputy Jeffrey Gerres of the Harford County Sheriff's Office was patrolling an apartment complex known for drug and gang activity. Gerres noticed several men standing in a breezeway below a sign that proscribed loitering and recognized one of the men as Lamere Walton, a known gang member. Deputy Gerres parked outside of the development and approached the men on foot to investigate. As Deputy Gerres approached, some of the men ran into nearby apartments. However, Deputy Gerres was able to stop and detain Walton, who immediately began reaching in his pockets. Fearing that Walton was attempting to get a weapon or seeking to destroy evidence, Deputy Gerres pulled Walton's hand out of his pocket. In Walton's hand was a car key.

Deputy Gerres pressed the key's panic button, which activated the lights and horn of a Jeep parked nearby. After running the plates on the vehicle, Deputy Gerres learned that the vehicle had been recently stolen in an armed carjacking. The vehicle turned out to be Roarty's stolen Jeep, and Walton was placed under arrest. Deputy Gerres then searched the vehicle with the aid of other officers and found a black and orange Baltimore Orioles baseball cap. During this encounter, Tyrone Moore, whom Deputy Gerres knew to be a gang member and an associate of Walton's, walked by the scene wearing a black Orioles t-shirt, black and orange pants, and black and orange shoes. Because Moore and Walton were friends and because Moore's outfit matched the baseball cap within the vehicle, Deputy Gerres detained Moore for a brief investigation. Moore denied involvement in the carjacking, and Deputy Gerres took photographs of Moore to show his clothing and then released him.

Subsequently, the Baltimore City Police Department began efforts to create a photo line-up for use in the Roarty case. The police department contacted Corporal Richard E. Carroll, III, of the Maryland State Police Department, and requested a photograph of Moore to use in the photo array. Corporal Carroll indicated that not only did he have a photo of Moore, but he also possessed a photo array, already prepared for an unrelated investigation in October 2007, that included Moore's photograph. Corporal Carroll provided that photo array to the city police officers who decided to use it in their investigation.

Roarty was then contacted by the city police department and asked to come to the station to view the photo array. The police department told Roarty that they had recovered his Jeep and that they had a suspect in custody. Although the police department did not tell Roarty that the suspect was in the photo array, Roarty testified that he assumed the suspect would be in it based on the fact that a suspect was in custody at the time. When looking at the photos, Roarty initially indicated that he was not sure he would be able to make an identification in light of the fact that so much of the assailant's face had been covered up at the time of the carjacking. One of the officers administering the photo array instructed Roarty to focus on the portion of the face that Roarty could see at the time of the carjacking—the eyes. Based on the eyes and general shape of the face in a particular photograph, Roarty picked Moore out of the photo array, indicating at the time that he was 95% certain that the person he selected was the carjacker.

B.

Moore was indicted for conspiracy to steal a car with intent to cause serious bodily harm, see18 U.S.C. § 371 (“Count 1”); theft of a car with intent to cause serious bodily harm, see18 U.S.C. § 2119 (“Count 2”); and use of a firearm in furtherance of carjacking, see18 U.S.C. § 924(c) (“Count 3”). Prior to trial, Moore requested that the government provide photographs of Pollin taken at or near the time the carjacking occurred. The government complied by providing Moore with several pictures of Pollin, including one depicting Pollin with dreadlocks (“Dreadlocks Picture”) and one depicting Pollin with short hair (“Short Hair Picture”). The government explained to Moore's attorney that some of the pictures came from a police incident report relating to Pollin's arrest for a shooting that occurred approximately one month after the carjacking. The Short Hair Picture was dated December 31, 2007. Notably, the Dreadlocks Picture was undated.

The focus of the trial that followed was the identity of the carjacker. Seeking to persuade the jury that Moore was the carjacker, the government made efforts to eliminate the possibility that someone other than Moore committed the crime. Because Pollin was the first person seen driving the stolen Jeep, only three days after the carjacking, part of the government's case was excluding Pollin as the possible assailant.

The government sought to achieve this end in large part by offering proof that Pollin did not have dreadlocks at the time of the carjacking. To establish this fact, the government produced the testimony of the officer who saw and dealt with Pollin shortly after the Roarty incident and corroborated his testimony with a photograph taken of Pollin a month later. Specifically, Detective Underhill testified that he saw Pollin on November 28, 2007, three days after Roarty was robbed and that Pollin had short hair at that time. Detective Underhill then viewed the Short Hair Picture of Pollin, represented by the government to have been taken by law enforcement on December 31, 2007, and confirmed that Pollin's short hair in that photograph was similar to his short hair length that Detective Underhill saw on November 28. Detective Underhill further testified that he could not recall Pollin ever having dreadlocks. When counsel for Moore asked Detective Underhill about the Dreadlocks Picture on cross-examination, Detective Underhill explained that “[t]he hair [was] different from what [he] kn[e]w.” J.A. 341.

As previously stated, the government also provided Moore with a picture of Pollin with dreadlocks, but it was undated. In attempting to prove that Pollin had dreadlocks at the time of Roarty's carjacking,Moore's counsel asked defense witness Michael Wells about the Dreadlocks Picture. Wells was a friend of Moore's and a cousin of Pollin's, and was incarcerated at the time of Moore's trial for drug and firearm offenses. So although Wells did testify that Pollin had dreadlocks at the time of the carjacking, his testimony was weak in the face of the government's dated photograph and corroborating testimony from Detective Underhill. Ultimately, the jury believed that Moore was the assailant and that Pollin was not, and it convicted Moore of each count in the indictment.²

C.

After trial, Moore continued to insist to his attorney that the Short Hair Picture, despite the fact that it was dated December 31, 2007, was not consistent with his recollection of Pollin's appearance at that time. Counsel for Moore contacted counsel for the government and...