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Moore v. United States

Court of Appeals of Columbia District

April 30, 2015

KEITH A. MOORE, APPELLANT,
v.
UNITED STATES, APPELLEE

Argued September 25, 2014

Page 647

Appeal from the Superior Court of the District of Columbia. (CF3-11041-11). (Hon. Ann O'Regan Keary, Trial Judge).

Justin Murray, Public Defender Service, with whom James Klein, Samia Fam, and Shilpa S. Satoskar, Public Defender Service, were on the briefs, for appellant.

Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, John P. Mannarino, and Holly Shick, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and PRYOR, Senior Judge. OPINION by Associate Judge GLICKMAN. Dissenting opinion by Senior Judge PRYOR.

OPINION

Page 648

Glickman, Associate Judge

Appellant Keith Moore was convicted of robbing Lorenzo Thomas at gunpoint of over $1,000 in cash, and of other, related crimes. The theory of Moore's defense at trial was that Thomas never had such a large sum in his possession and that he fabricated the robbery in a desperate ploy to forestall the imminent revocation of his probation on account of his inability to pay court-ordered restitution. It therefore was important to the government's case to show that Thomas was not lying, and hence to explain how he came to possess over $1,000 in cash at the time of the alleged robbery. In doing so, the government had an obstacle to overcome: While Thomas testified at trial that the money allegedly stolen from him came from a tax refund and gambling proceeds, he previously had said otherwise and lied about the source of the funds. For this and other reasons, Thomas's credibility was a central issue at trial.

Prior to trial, to confirm that he in fact had received a tax refund, Thomas gave his 2010 federal tax return to the prosecutor, who in turn provided it to Moore's defense counsel and the court. In doing so, the prosecutor flagged the fact that Thomas had obtained a sizable tax credit and refund--over three thousand dollars--by claiming his twelve-year-old sister as his dependent. The prosecutor stated that she had discussed this with Thomas before he testified in the grand jury, and that " there was no understanding between him [and] the government about whether claiming his sister as a dependent was appropriate." Based on this disclosure and additional information indicating that Thomas was not entitled to the tax credit, Moore sought to cross-examine Thomas at trial about whether he had committed tax fraud--primarily in order to impeach Thomas's veracity and demonstrate that he was capable of fabricating the robbery in this case for a monetary gain, and secondarily to explore Thomas's motive to curry favor with the prosecution inasmuch as he had not been granted immunity from prosecution for tax fraud. However, the trial court, doubting that the inquiry would be probative of Thomas's veracity as a witness, and concerned that a digression into tax law would confuse the jury, precluded the proposed cross-examination in its entirety. On appeal, Moore contends that the court exercised its discretion erroneously in so ruling, and that we cannot deem the error harmless. We agree, and we therefore reverse Moore's convictions and remand for a new trial.

I.

The alleged robbery occurred on June 12, 2011, and was described at trial by

Page 649

Thomas and his friend Dale Bolton.[1] That afternoon, they testified, they had been gambling at the home of " Little Tey." Thomas said he had arrived with a " couple hundred dollars" from his tax refund and some money from his mother, and that he won several hundred dollars, so that he had $1,066 by the time the gambling ended. Bolton, however, testified that Thomas had lost some money while gambling that afternoon, and was complaining about it.[2]

Upon leaving Little Tey's house, Thomas and Bolton joined Moore, Ronald Kent, and their friend Demario Kennedy, and the group decided to go in Kent's SUV to a liquor store where Thomas intended to purchase a $1,100 money order. This was a matter of some urgency for Thomas, because he was on probation in connection with his conviction in 2005 on four counts of armed robbery, and he needed the money order to make an overdue payment of restitution and avoid having his probation revoked at a violation hearing that happened to be scheduled the following day. On the way, the group stopped in the parking lot of the apartment complex where Moore's mother lived. Moore left the SUV to get his brother Darrell while Bolton went to buy marijuana and PCP. Thomas, who remained in the SUV, saw Moore hand his cell phone to Darrell.

The robbery allegedly took place when Moore returned to the SUV with his brother. Although their accounts differed as to the details, Thomas and Bolton testified that Moore pulled a gun on Thomas and, with his brother's assistance, robbed him of his money, wallet, and cell phone. Moore then directed Thomas to leave the area on foot, which he did. As Thomas departed, he saw Kent pull over in the SUV and pick up Moore.[3]

Thomas fled to a nearby church, where he summoned the police and reported that Moore and his brother had just robbed him with a silver handgun. After broadcasting a lookout for Kent's SUV, the officers and Thomas went to the parking lot where Thomas said the robbery took place. They found Thomas's wallet lying on the ground. Any money that had been in it was missing. Thomas and the officers then located Bolton, who had gone home, but he was unwilling to speak with them.

Meanwhile, not far away, other police officers spotted Kent's SUV and followed it. As they did so, one of the officers saw a handgun thrown out of the right rear passenger window of the SUV. The police later recovered a black handgun on the ground in that vicinity. When the police succeeded in stopping the SUV, they took its four occupants--Moore (who was sitting in the right rear passenger seat), his brother, Kent, and Kennedy--into custody. In separate showups, Thomas identified each of them. Moore, he stated, was the person who held the gun to his head while his brother went through his pockets. The police found $943 on Moore's person (all but $20 or $30 of it in his sock) and $61 on

Page 650

two of the other passengers.[4] From Moore's brother, the police took a blue Cricket cell phone, which Thomas identified as his.[5]

Thomas subsequently was shown a photograph of the black handgun suspected of having been thrown from Kent's SUV. At first he said he did not recognize it and recalled that Moore's gun was a different color (silver). However, after continuing to examine the photo, Thomas noticed that the gun in the photo was a Colt. He stated that Moore's gun was a Colt and then declared that the gun in the photo was the gun Moore used to rob him. At trial, Thomas was shown the black handgun and identified it as the one Moore used, even though he earlier had said the weapon was silver. The defense challenged the credibility of this identification. [6]

In addition to the foregoing evidence, the prosecution introduced a recording of a telephone call Moore made to someone named Tracy three days after his arrest.[7] During the call, Moore told Tracy " I'm gonna go ahead and take this shit for everybody so them can come home," " I sit up all night crying about [Thomas] doing some shit like this," and " if it was anybody else," the police would not have been called, " and I wouldn't even be right here man." The government contended that these statements amounted to inculpatory admissions, while the defense argued that Moore ...


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