UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4943
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KINDALE TYRONE CROCKTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-78-F)
Argued: January 31, 2007 Decided: April 16, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Robert E. Skiver, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina; Susanna M.
Ringler, Third Year Law Student, WAKE FOREST UNIVERSITY SCHOOL OF
LAW, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kindale Crockton was tried and convicted for one count of
possession of a firearm by a felon. On appeal he asserts that he
is entitled to a new trial because the district court erroneously
admitted a police record into evidence. Although it was error to
admit the record, the error was harmless. We therefore affirm
Crockton’s conviction. Crockton also asserts that the district
court committed Sixth Amendment error because the facts underlying
a sentencing enhancement he received were neither admitted by him
nor proved to a jury beyond a reasonable doubt. We conclude that
any Sixth Amendment error, if it occurred, was harmless because the
district court announced an identical, alternative sentence. We
therefore affirm Crockton’s sentence.
I.
On the morning of July, 18, 2003, Officer William Holland
of the Fayetteville, North Carolina, Police Department was
conducting surveillance of a house on Progress Street in response
to complaints about prostitution and drug dealing in the
neighborhood. Officer Holland saw Carl McLaughlin and Terrence
McNeill engaged in what he believed to be a drug sale. Shortly
thereafter, Crockton arrived at the house by car. When he exited
the car, he went up to McLaughlin and McNeill and appeared to hand
them something. Crockton then left on foot. Shortly thereafter,
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Officer Holland watched as Crockton returned carrying “some type of
long firearm wrapped in a white plastic bag.” J.A. 289. This
time, Crockton walked around to the backyard where McNeill and
McLaughlin were standing and handed the gun to McNeill. McNeill
unloaded and reloaded the weapon before hiding it under some
bushes. Crockton then drove off. At this point, Officer Holland
called for backup, approached the house, and placed McNeill and
McLaughlin in handcuffs while he retrieved the firearm, a 12-gauge
shotgun. Minutes later, Crockton returned to the house on foot.
Officer Holland told him to be seated with McNeill and McLaughlin
but did not place him in handcuffs. Although no one was arrested
at the time, Holland filled out field interview cards on all three
men.
On March, 17, 2004, Crockton was charged with one count
of being a convicted felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924. During Officer Holland’s
testimony at trial, the government moved to admit the field
interview card that Holland had completed with respect to Crockton.
Defense counsel objected to the card’s admissibility under Fed. R.
Evid. 803(8)(B), and the court held a bench conference. Defense
counsel asserted that the card was an inadmissible police report.
Looking only at the front side of the card, the district court
disagreed, stating that the card was “just a straight identity
record with the name [and] address” of the defendant. J.A. 313.
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The district court did not comment on the section on the front of
the card titled “Sus Act” under which boxes next to the words
“Narcotics” and “Weapons” had been checked. J.A. 691. The
district court was unaware that the back of the card also contained
notations by Officer Holland. Under the header “Demeanor,” Officer
Holland had checked “Nervous.” Similarly, under “Drug Type”
Holland had checked “Cocaine” and under “Weapon/Tool” he had marked
“Rifle/Pistol.” In a section of the card titled “Remarks,” Officer
Holland wrote, “Dealing narcotics & possessing firearm by a felon.”
J.A. 692.
Following the bench conference, the prosecutor resumed
the examination of Officer Holland, asking “[T]hat information on
there is what you got from him on the front side of the card?”
J.A. 314. Officer Holland replied affirmatively, and the
prosecutor then asked, “What was the purpose in obtaining that
information?” Holland answered, “Basically our records keeping,
knowing who’s on -- who was on the scene. That’s for biographical
information purposes.” J.A. 314. The court then admitted the card
into evidence.
In addition to Officer Holland, both McNeill and
McLaughlin testified against Crockton. McNeill stated that
Crockton had asked him to hold (or store) the shotgun, and
McLaughlin corroborated Officer Holland’s account of the manner in
which Crockton carried the shotgun and how it had been wrapped in
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plastic. McNeill and McLaughlin further testified that Crockton
had pressured them not to implicate him in the gun possession.
This testimony was corroborated by another witness who stated that
Crockton told him about his attempts to influence McNeill’s
testimony through threats.
In an effort to impeach McNeill and McLaughlin, the
defense called Officer Gregory Guilder, a dispatcher for the
Fayetteville Police Department. Officer Guilder testified that
computer aided dispatch reports (CAD reports) made of Holland’s
radio transmissions on July 18 concerned only McNeill and
McLaughlin. During closing argument, defense counsel asserted that
the fact that Crockton’s name had not been put out over the radio
was significant and implied that Holland may have fabricated
Crockton’s involvement with the gun. The prosecutor addressed this
argument on rebuttal, stating:
Now, some remarks made about the CAD reports and that
only Mr. McNeill and Mr. McLaughlin was there on the CAD
report. . . . we know from . . . these field interview
cards, we know exactly what Officer Holland was
investigating because it says it on the back. . . . we
look at Mr. Crockton’s [field interview card], filled out
at the time this event took place. Says: dealing
narcotics and possessing a firearm by a felon. Obviously
Officer Holland’s contemporaneous notes on 6,7, and 8
[the respective exhibit numbers for Crockton, McNeill,
and McLaughlin’s field interview cards] support his
version of the facts. He couldn’t go back and make those
later. Those were made at the time. That was his
testimony.
J.A. 639. The defense did not object to the mention of
information contained on the back of the card. However, after the
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jury left the courtroom, the district court expressed its
frustration with the government’s line of argument, stating:
Apologize for the ignorance. . . . I had no idea there
was a charge written on the back. . . . It says what he
was doing. You may have a basis for appeal, I will let
it go to the jury but I will tell you it’s all I can do
to contain myself to find this out at the end of the
case.
J.A. 646. The district court then issued a curative instruction to
the jury, stating that the cards, which had not been published to
the jury, were not to be considered substantive evidence with
regard to the defendant’s guilt or innocence and would not be sent
to the jury room.
The jury returned a guilty verdict. At Crockton’s
sentencing hearing on October 20, 2004, the defense raised an
objection under Blakely v. Washington, 542 U.S. 296 (2004), to the
two-point enhancement for committing the current offense within two
years of release from custody. The objection was overruled. The
district court sentenced Crockton to 120 months’ imprisonment to be
followed by a three-year term of supervised release. The district
court announced an identical, alternate sentence pursuant to 18
U.S.C. § 3553(a).
Crockton appeals his conviction and sentence. He argues
that the district court’s erroneous admission of his field
interview card and the prosecution’s comments to the jury about the
contents of that card entitle him to a new trial. Crockton also
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argues that his enhanced sentence violates the Sixth Amendment. We
address both issues in turn.
II.
We begin with the question of whether the district court
erred in admitting Crockton’s field interview card into evidence.
While Fed. R. Evid. 803(8) allows certain public records and
reports to be admitted into evidence as hearsay exceptions, subpart
(B) of the rule explicitly excludes “in criminal cases” written
reports of “matters observed by police officers.” Police
investigative reports are inadmissible because they are generally
crafted with an eye toward prosecution, and their “use against the
accused in a criminal case” would bring about “the almost certain
collision with confrontation rights.” Fed. R. Evid. 803(8)
advisory committee’s note. We review the district court’s
evidentiary ruling for abuse of discretion, United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997), keeping in mind that any
“error . . . that does not affect substantial rights must be
disregarded,” Fed. R. Crim. P. 52(a).
The district court admitted Crockton’s field interview
card because it believed that the card contained only “straight
identity” information. J.A. 313. But the front of the card also
contained Officer Holland’s notations about Crockton’s alleged
activities in the section titled “Sus Act.” Holland’s check marks
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next to “Narcotics” and “Weapons” are written recordings of
observations made during a criminal investigation. Accordingly,
the district court abused its discretion in failing to exclude the
card under Rule 803(8)(B).
Of course, when the district court realized that the back
of the card contained the statement “Dealing narcotics & possessing
firearm by a felon,” the court recognized its mistake and
immediately issued a curative instruction to the jury. Given the
curative instruction, the fact that the card was never published to
the jury, and the strong case presented against Crockton, the
government argues that the error was harmless.
Crockton contends that admission of the field interview
card was not harmless. He argues that the prosecutor in closing
argument attempted “to capitalize on the inadmissible information”
contained in the card by turning it into “an accusation against Mr.
Crockton for a crime for which he did not stand trial: ‘dealing
narcotics.’” Appellant’s Br. at 23. Crockton contends that such
an accusation constitutes prosecutorial misconduct. Crockton did
not object to the prosecutor’s argument at trial. Moreover, on
appeal Crockton does not raise his prosecutorial misconduct
argument as a stand alone claim. Instead, he argues that admission
of the card was not harmless because it led to and facilitated
prosecutorial misconduct during the government’s closing argument.
Thus, if the prosecutor’s comments do not rise to the level of
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reversible prosecutorial misconduct, the district court’s error in
admitting the card would have to be viewed as harmless.
Our court applies “a two-pronged test for determining
whether a prosecutor’s misconduct in closing argument ‘so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.’” United States v. Wilson, 135 F.3d 291,
297 (4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168,
181 (1986)). A defendant must show “[1] that the [prosecutor’s]
remarks were improper and [2] that they prejudicially affected the
defendant’s substantial rights so as to deprive him of a fair
trial.” Id. (quoting United States v. Adam, 70 F.3d 776, 780 (4th
Cir. 1995)). While the prosecutor’s remark may have been improper,
Crockton’s substantial rights were not “prejudiced to the point of
denying him a fair trial.” Id. at 299. We have identified a
number of factors, no single one determinative, that are relevant
to the prejudice inquiry, including:
(1) the degree to which the prosecutor’s remarks have a
tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the
accused; and (4) whether the comments were deliberately
placed before the jury to divert attention to extraneous
matters.
Id. (quoting Adam, 70 F.3d at 780). “We also consider (5) whether
the prosecutor’s remarks were invited by improper conduct of
defense counsel, and (6) whether curative instructions were given
to the jury.” Id. at 299 (citing United States v. Young, 470 U.S.
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1, 12-13 (1985) and United States v. Harrison, 716 F.2d 1050, 1053
(4th Cir. 1983)). Taken together, these considerations convince us
that Crockton was not denied a fair trial. Any tendency toward
prejudice caused by the prosecutor’s mention of Officer Holland’s
accusation of drug dealing is outweighed by the single mention of
that allegation, the strength of the government’s case, and the
curative instruction given to the jury. Because we conclude that
the government’s closing argument did not prejudice Crockton’s
substantial rights, we must also conclude that the district court’s
decision to admit the field interview card was ultimately harmless.
We therefore affirm Crockton’s conviction.
III.
We turn last to Crockton’s challenge to his sentence.
Our decision in United States v. Revels, 455 F.3d 448 (4th Cir.
2006), controls and requires us to affirm the sentence. We need
not reach the question of whether Crockton’s sentence was enhanced
in violation of the Sixth Amendment because even if that was the
case, “the district court indicated that if the Guidelines were
non-mandatory, it would have imposed the same 120-month sentence
pursuant to the factors in 18 U.S.C. § 3553(a).” Id. at 452. As
such, any Sixth Amendment error is harmless because it did not
“actually affect[] the outcome of the proceedings.” Id. (quoting
United States v. Hughes, 401 F.3d 450, 458 (4th Cir. 2005)).
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* * *
For the reasons stated, Crockton’s conviction and
sentence are
AFFIRMED.
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