255 F.3d 95 (3rd Cir. 2001), 98-5429, Moore v. Morton

Docket Nº:98-5429
Citation:255 F.3d 95
Party Name:CLARENCE MOORE, Appellant v. WILLIS MORTON, ADMINISTRATOR; PETER G. VERNIERO, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
Case Date:June 22, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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255 F.3d 95 (3rd Cir. 2001)

CLARENCE MOORE, Appellant

v.

WILLIS MORTON, ADMINISTRATOR; PETER G. VERNIERO, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

No. 98-5429

United States Court of Appeals, Third Circuit

June 22, 2001

Argued September 16, 1999,

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PAUL J. CASTELEIRO, ESQUIRE (ARGUED), Hoboken, New Jersey, Attorney for Appellant.

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NANCY A. HULETT, ESQUIRE (ARGUED), Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Criminal Justice, Appellate Bureau, Trenton, New Jersey, Attorney for Appellees.

Before: SCIRICA, RENDELL and GREENBERG, Circuit Judges. RENDELL, Circuit Judge, concurring. GREENBERG, Circuit Judge, dissenting.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Clarence Moore, who was convicted of rape and robbery and sentenced as a persistent offender to life imprisonment with twenty-five years of parole ineligibility, appeals from the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The principal issue at trial was the identity of the rapist. The principal evidence was the victim's post-hypnotic identification. The state prosecutor made certain improper arguments during jury summation which were addressed by the trial judge with curative instructions. The issue on appeal is whether these improper arguments deprived Moore of his right to a fair trial.

I.

On March 5, 1987, a jury convicted Moore of second-degree burglary, second-degree robbery, robbery with intent to commit aggravated sexual assault, and three counts of aggravated sexual assault. These essential facts were established at Moore's trial.

On January 14, 1986, some time after 1:20 a.m., 25-year-old M.A. was viciously assaulted by a man in the bedroom of her cottage in Somers Point. M.A. went to bed that night only to be awakened by a male who grabbed her by the neck. The male demanded money, and M.A. removed $ 8 from her purse and gave it to him. When M.A. could produce no more money, the man became angry. He ordered her to undress. Despite the man's assurance she would not be hurt if she did as she was told, the man penetrated her anally after she complied with his directions to roll over on her stomach and then kneel on her hands and knees. The man then ordered her to roll over and he penetrated her vaginally. He then forced her to perform fellatio on him until he ejaculated. Still angered by lack of money, the man forced her to again perform oral sex until he achieved an erection. He then ordered her to kneel on the bed and "shake" her rear in the air while someone outside watched. He warned her if she did not do this "he would come back and do it again or kill" her. M.A. remained in her bed for four hours fearful the man was still in the house.

Finally, she arranged to have the police called and, when the police arrived, M.A. described her attacker. She described him as a black male, about 5'8" to 5'10" tall, late twenties to early thirties, very muscular and strong. . . . She also said her attacker had been wearing blue jeans. Further, she described him as having some facial hair on the sides of his face.

While the bedroom was dark, there was enough outside light "to see a face." Also, although she was not wearing her contact lenses that corrected her nearsightedness, she stated the attacker was "very close" to her, close enough for her to see him and his face . . . . However, M.A. testified she could see without her contacts, that she had driven without them, and her vision did not prevent her from seeing things close to her.

When M.A. could not give the police composite artist sufficient information to develop a composite sketch, she suggested hypnosis, thinking it "might help her remember, in more detail, his

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face." With the aid of hypnotically enhanced memory, she could vividly recall her attacker's facial features. She thereafter was able to positively identify the defendant as her assailant both in court and on three occasions in out-of-court photographic arrays. She described the hypnotic enhancement as making her attacker's face "much clearer" with "the features . . . more detailed." She also testified she initially could not positively recognize her assailant without the hypnosis. There is nothing in the record to suggest either the police or the doctor assisting the hypnosis in any way suggested what the assailant might look like.

As a result of the hypnosis, M.A. also recalled her assailant wore a tan suede jacket with dirt around the pockets. A subsequently executed search warrant at defendant's residence turned up a tan suede sweater jacket with pockets along with several pairs of blue jeans.

State v. Moore, 273 N.J. Super. 118, 641 A.2d 268, 270-71 (N.J. App. Div. 1994) ("Moore II") (alterations in original). At trial, M.A., a Caucasian woman, testified and identified the jacket as the one worn by her attacker.

A portion of the trial consisted of expert testimony on hypnosis.1 The State's witness, Dr. Samuel Babcock, justified his methodology and maintained that M.A.'s memory was enhanced through hypnosis.2 Defense witness Dr. William A. Miller testified about the shortcomings of using hypnosis to enhance a victim's memory.

Clarence Moore, an African-American male, did not testify. His wife Cheryl Moore, a Caucasian woman, testified on his behalf. Mrs. Moore testified that she and her husband lived about forty-five minutes from M.A.'s home. Although not recalling the night of the rape in particular, Mrs. Moore testified she would have noticed if her husband were missing for a period of two and a half to three hours in the early morning hours. She testified her baby suffered from a condition called "failure to thrive" which required frequent nursing and that Mr. Moore assisted her in nursing the baby. Mrs. Moore also testified that at the time of the rape, she was suffering from mastitis, a type of breast infection.

The state trial court observed, "The only real question in this case is that of identity." There was no dispute that the victim was sexually assaulted and robbed, and the only "real question" for the jury was whether Moore was the culprit. As the trial court found, the answer turned on "whether or not the [hypnotically] enhanced or refreshed recollection [of the victim] was of sufficient reliable character and with such probative value that the jury should believe [the victim] beyond a reasonable doubt."

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The trial lasted more than two weeks and at the conclusion, both the defense and the prosecution delivered summations that lasted two to three hours. In his summation, the prosecutor sought to explain why Mrs. Moore's testimony buttressed the State's case stating, "Based on the testimony of Cheryl Moore, the case is stronger than ever, that the odds are that this defendant is the perpetrator [and] . . . you have more reason to convict Clarence McKinley Moore now that she has testified than ever." The prosecutor noted that there were in fact "three important things" that the jury should learn from Mrs. Moore's "appearance" as a defense witness.

Here's where I ask you to really concentrate on my words because if you misunderstand what I'm saying right now, I am going to feel real bad and foolish, and you are too. So let's all understand it like adults.

Race has nothing whatsoever to do with this case, right? Right. We all know that the race of the people involved does not at all dictate whether he's guilty or anything like that. I mean, let's hope that we all feel that way, whether we are white or black or anything. Okay? So let's clear the air that the statement that I'm about to make has nothing whatsoever to do -- and I hope this machine hears this-- has nothing whatsoever to do with race.

This has to do with selection, okay? Here's what I mean. All of us select people in life to be with based on whatever reason, whether it's people to marry, whether it's friends, whether it's people to associate with, whether it's business people. We all make choices in life that lead us to relationships with others, and those choices may or may not be significant.

Let me show you what I mean. What if you as an individual, whether you're male or a female, decide in your life that you want to live your life with a blonde? You know, you see all of these ads about blondes have more fun and this and that and, again, whether you are male or female or whatever--it can work both ways --and so you become interested in being with blondes because you prefer them. Right? Gentlemen prefer blondes.

Well, that can be seen, can't it, because maybe the people that you choose to date or marry or be with all appear to be blondes or it might be redheads or it might be green hair. You know, nowadays I guess green is one of the popular colors. It could be anything. You could substitute any color hair or you could substitute any particular trait. Right? It needn't even be color of hair. It could be the color of eyes. It could be a person who likes tall people. I think whoever I should be with should be six foot four. It would make me feel terrific to be with a woman six foot four, or vice versa, a woman could think of a man like that.

You see my point? It's not a statement of race; it's a question of choice, selection of who you might want to be with, whether it is as a mate or a boyfriend or girlfriend or victim. How about that? How about that some people might choose a victim according to the way they look, whether they be blonde or blue or anything else?

So I ask you this: What did we learn when we found out that Cheryl Moore was the wife of the defendant? I suggest to you in a nonracist way that what we found out was that Clarence McKinley Moore made a choice...

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