809 F.2d 702 (11th Cir. 1987), 82-8683, Moore v. Kemp

• Citation: 809 F.2d 702
• Party Name: Carzell MOORE, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
• Case Date: January 21, 1987
• Court: United States Courts of Appeals, U.S. Court of Appeals — Eleventh Circuit

Page 702

809 F.2d 702 (11th Cir. 1987)

Carzell MOORE, Petitioner-Appellant,

v.

Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellee.

No. 82-8683.

United States Court of Appeals, Eleventh Circuit

January 21, 1987

Page 703

Robert E. Morin, Rockville, Stephen B. Bright, Atlanta, Ga., for petitioner-appellant.

William B. Hill, Jr., Susan Boleyn, Daryl A. Robinson, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY,

Page 704

VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, and EDMONDSON ^[*], Circuit Judges, and HENDERSON, ^[**] Senior Circuit Judge.

TJOFLAT, Circuit Judge: ^[***]

I.

A.

Shortly before 7:00 p.m. on December 12, 1976, several patrons of the Majik Market convenience store in Cochran, Georgia, found the store open and unattended. The store's cash register and safe were open and empty, and the store's cashier, eighteen-year-old Teresa Carol Allen, was missing. Her automobile had also vanished. Two days later, Ms. Allen's body was discovered over seventy miles northwest of Cochran in Monroe County, Georgia. Found near her body were footprints, two 30.06 caliber cartridge hulls, a 30.06 caliber metal jacket of a bullet, tire tracks, a nylon stocking, a pair of leather work gloves, and parts of Ms. Allen's flesh, teeth, and bone.

Police immediately began a search for Ms. Allen's automobile. Approximately one month later, the automobile was discovered in South Carolina in the possession of an escaped convict, twenty-year-old Roosevelt Green; Green had been arrested for an unrelated convenience store robbery. From jail Green made a telephone call to the mother of an acquaintance, Thomas Pasby, and stated, "Tell Carzell Moore I'm in jail in South Carolina." The Georgia law enforcement officials investigating Ms. Allen's murder learned of this telephone call and questioned a number of persons in Cochran about possible links between Green and Moore. They discovered that Green and Moore met and became friends while they were in prison in Alabama, that on December 11, 1976, after escaping from prison in late 1975, Green arrived in Cochran asking for Moore, and that Moore had introduced Green to a number of friends in Cochran, among them Thomas Pasby. On January 10, 1977, Carzell Moore was arrested and was placed in the Bleckley County jail, located in Cochran. Five days later, authorities obtained a search warrant for Moore's home and seized several items, including one pair of brown "Hush Puppy" shoes and a gold towel. These items were submitted to the Georgia crime lab for analysis.

On February 15, 1977, a grand jury in Monroe County, Georgia, returned an indictment charging Moore and Green with the rape and first-degree murder of Ms. Allen. Green escaped from the Monroe County jail prior to trial and was not recaptured for several years. As a result, in June 1977, Moore was tried separately before a jury in the Superior Court of Monroe County, Georgia. The key witness for the State was thirty-year-old Thomas Pasby. Pasby was a resident of Cochran and was employed as a cement finisher in Hawkinsville, Georgia. He testified that he had known Carzell Moore for fifteen years and that since his return to Cochran in 1974, after serving in the Army for eight years, he had "spent a lot of time" with Moore. According to Pasby, in late November 1976, he drove Moore to a location in Cochran near a flower shop. Moore asked Pasby to park and to wait for him to return. After a few minutes had passed, Moore returned to the car carrying a 30.06 caliber hunting rifle similar to the murder weapon. A few weeks later, Pasby accompanied Moore to an abandoned schoolhouse where Moore kept the rifle. Pasby examined the

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rifle and noticed that its serial number had been obliterated.

Pasby also testified that on January 1, 1977, during a trip to Hawkinsville, Moore confessed to him that he had raped and murdered Ms. Allen and described how the crimes were committed. Pasby related Moore's description of the events of December 12, 1976, as follows. Roosevelt Green entered the Majik Market and distracted Ms. Allen so that Moore could enter the store without the rifle being noticed. After robbing the store, the two men abducted Ms. Allen and drove away in her car. With Moore driving the car, Green raped Ms. Allen. The two men then exchanged places, and Moore raped Ms. Allen. Some time later Moore told Green to stop the car. He got out of the car with Ms. Allen and told Green to go to a gas station to get gas for the car. After Green left, Moore pointed the rifle at Ms. Allen. She reacted by crossing her arms over her stomach. Moore then fired the rifle into her abdomen. He fired a second shot into her face in an attempt to make identification difficult. When Green returned, the two men picked up the body and threw it into the bushes by the side of the road. Moore told Pasby that his first rifle shot had so mangled one of the victim's hands that he thought it was going to fall off.

During his direct examination, Pasby testified that he had been arrested on January 4, 1977, for theft by taking. Pasby said that the arrest took place in Hawkinsville and that shortly after he was taken into custody he was transferred to the Bleckley County jail in Cochran. Pasby testified that Moore was placed in the jail with him following Moore's arrest on January 10. Pasby stated that, while he was in the jail with Moore, he learned that Roosevelt Green had been arrested and told Moore about the arrest. ¹ Moore exclaimed, "Damn, I told Green to get rid of that car and rifle."

The remainder of the State's case consisted of evidence corroborating Pasby's testimony. Terry Kilgore, the owner of a flower shop in Cochran, testified that his 30.06 hunting rifle was stolen from his truck some time after Thanksgiving 1976. The rifle, registered in Kilgore's name, was determined in a ballistics test to have been the murder weapon. Green had the rifle in his possession the morning after the Majik Market robbery. Charles Livingston testified that, on that morning, Green arrived at his home in South Carolina driving an automobile similar to Ms. Allen's car. In Green's possession were a roll of bills, a "bank bag," a large amount of coins (all of which were consistent with the items taken from the Majik Market), and a 30.06 caliber rifle. Green traded the 30.06 caliber rifle for Livingston's .25 caliber automatic pistol. The police subsequently confiscated the rifle, and Kilgore identified it during his testimony.

Johnny Johnson, an acquaintance of Moore's, testified that on December 9, 1976, three days before the robbery, Moore asked him and a friend if they knew of a place to "hit." Moore told them that he had a high-powered rifle and ammunition that would be useful in a robbery. Three other witnesses testified that on the afternoon of December 12 they saw Moore and Green at Moore's home, approximately four blocks from the Majik Market.

A gas station attendant who worked at an Amoco station near the murder site testified that on the night of the murder a car matching the description of Ms. Allen's automobile stopped for gas. Two persons were in the car, and the attendant remembered that the passenger, a black male, paid for the gas and used the restroom. Although he was unsure of the sex or race of the driver, the attendant testified that he thought the driver was also a black male.

The State utilized a number of experts to inform the jury about the physical evidence found at the murder site and in the search of Moore's home. The pathologist who

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performed the autopsy on Ms. Allen testified that her injuries were consistent with Moore's description to Pasby of the rape and murder. His examination of the body revealed bullet wounds in each arm, the abdomen, and the head. From the location and nature of the bullet wounds, the pathologist theorized that Ms. Allen's arms had been crossed over her stomach when she was shot, allowing one bullet to pass through both arms before entering her abdomen. He noted that the right arm was "almost completely torn in two" by the bullet, with the right hand remaining attached to the body only by soft tissue. He also stated that a separate bullet entered the left side of the victim's head over her ear. His examination also revealed bruises on the inner thigh and vaginal injuries indicating that Ms. Allen had been raped prior to being killed.

A ballistics expert testified that bullets fired from the 30.06 caliber rifle confiscated from Livingston and registered to Terry Kilgore matched the 30.06 caliber slug retrieved at the murder site. Warren Tillman, a microanalyst from the state crime lab, testified that a plaster cast of a footprint found near the body was similar in size and in its treadless design to the pair of "Hush Puppy" shoes seized in the search of Moore's home. His examination of plaster casts of tire tracks found near the murder site revealed that the tracks were similar in size and tread design to the tires on Ms. Allen's automobile. Tillman also testified that in his opinion a Caucasian pubic hair and Negroid head hair removed from the gold towel seized in the search of Moore's home could have come from Ms. Allen and Mr. Moore respectively. In addition, he stated that the Negroid head hair found on the towel did not come from Roosevelt Green or Thomas Pasby. Finally, Linda Barton, a crime lab serologist, testified that vaginal swabbings taken from the victim revealed seminal fluids from an individual with type A blood. She concluded that the seminal fluid could not have come from Roosevelt Green, because he had type B blood. Although the serologist found that both Moore and Pasby had type A blood, she testified that in her opinion the seminal fluid could...