Moore v. Maggio, 83-4718

• Decision Date: 15 August 1984
• Docket Number: No. 83-4718,83-4718
• Citation: 740 F.2d 308
• Parties: Alvin R. MOORE, Jr., Petitioner-Appellee Cross Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellants Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 308

740 F.2d 308

Alvin R. MOORE, Jr., Petitioner-Appellee Cross Appellant, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellants Cross Appellees.

No. 83-4718.

United States Court of Appeals Fifth Circuit.

Aug. 15, 1984.

Henry N. Brown, Jr., Dist. Atty., 26th Judicial Dist., Benton, La., for respondents-appellants cross appellees.

Wellborn Jack, Jr., Walker, Feazel & Tooke, Rebecca L. Hudsmith, Shreveport, La., for petitioner-appellee cross appellant.

Appeals from the United States District Court for the Western District of Louisiana.

Before GEE, POLITZ and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Alvin R. Moore, Jr. was convicted in a Louisiana court of the murder of Jo Ann Wilson and sentenced to die. After exhausting his state remedies, Moore filed an application for federal habeas relief. The district court granted Moore partial habeas relief and ordered that he have a new penalty trial. The State of Louisiana now appeals the district court's grant of partial habeas relief. Moore cross-appeals in order to preserve those issues raised in his habeas petition that were not addressed by the district court. For the reasons set forth below, we reverse that part of the district court's judgment granting Moore relief.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Aaron Wilson, his wife Jo Ann, and their four-month-old daughter Regina lived at 804 St. Charles Street in Bossier City, Louisiana. ¹ Alvin Moore was a former neighbor and co-worker of Aaron's at the Veteran's Administration Hospital. On July 9, 1980, Moore picked up Arthur Lee Stewart, Jr. and Dennis Sloan in his automobile and the three rode around Shreveport, visiting, laughing and talking. Moore then said he wanted to go to Bossier City to "check on his old house." Moore's former residence was at 833 St. Charles Street.

After noticing that Aaron Wilson's car was gone, Moore went to the Wilsons' house with the announced purpose of getting "some money." According to Sloan, Moore knocked on the door and Jo Ann Wilson answered it. She and Moore talked briefly and Moore entered the house. Five minutes later, Sloan followed Moore to the door of the house. The door was slightly ajar and Sloan saw Moore and Jo Ann Wilson "making sex" on the floor of the living room. Sloan returned to Moore's automobile to tell Stewart what was happening. Stewart and Sloan then entered the house. Moore and a crying Mrs. Wilson had gone into the bedroom where baby Regina was also crying. Moore was "going crazy," ransacking the house. Jo Ann Wilson was described as "panicky" and "scared." She also appeared to be frightened of Moore. Sloan testified that Jo Ann Wilson said, "Take whatever you want, just get out of my house." Sloan also testified that Mrs. Wilson asked Moore not to harm her or her child.

After being threatened, Mrs. Wilson gave Moore a box of Kennedy half dollars. Sloan took a white bucket with $18.80 in pennies, and Stewart took some stereo components. Sloan and Stewart left the house and heard Jo Ann Wilson screaming behind them.

Moore ran out of the house five minutes later carrying a knife in his hand. Stewart testified that this was the same knife that Moore had had on the back seat of his car when the group drove to St. Charles Street. Moore told Stewart and Sloan, "I'm fixing to trip you all out ... I stabbed that bitch nine times." The three then drove to Church's Fried Chicken and McDonald's.

Jo Ann Wilson managed to call the police emergency number. The call was received by the Bossier City Police Department at 9:40 p.m. and a unit was dispatched. Patrolman Fields arrived at the house two minutes later. He knocked on the front door, but Jo Ann Wilson said she was unable to open it. He kicked in the door and found blood all over the living room. Officer Fields found Mrs. Wilson lying on the bed in the bedroom. Both rooms were in disarray. The victim was nude from the waist down, and was bleeding from her vagina, chest, and arms. She was having difficulty breathing, and told Officer Fields that she was dying. He asked her who stabbed her and she responded, "Elvin." Fields asked her if she knew "Elvin," and she replied that he "was a black guy that used to live down the street." It was obvious to Fields that Mrs. Wilson was dying, and she died approximately ten minutes after her dying declaration. Moore was arrested at 1:00 a.m. the next morning. The Wilsons' stereo components and the white bucket and pennies were found in the trunk of Moore's car.

Dr. George McCormick, coroner of Bossier Parish and a forensic pathologist, performed an autopsy on the victim. At the guilt phase of the trial, he testified that Jo Ann Wilson had received thirteen stab wounds and three other minor wounds. She was wounded on her shoulders, arms, chest, back, and in the pelvic and abdominal areas. There was also testimonial evidence that Mrs. Wilson had recent vaginal and rectal intercourse, probably within six to eight hours of the autopsy.

Blood flakes taken from Moore's pants were identified as blood group O. Mrs. Wilson had blood group O; Sloan, Stewart and Moore had blood group B. No blood was found on the clothing of either Stewart or Sloan. Foreign pubic hairs taken from Jo Ann Wilson's vagina did not match those of Sloan, Stewart or her husband, but matched the pubic hair characteristics of Moore. One hair on the bed sheet also matched all the characteristics of Alvin Moore's pubic hair.

Moore took the stand in his defense. He contended that his intercourse with Jo Ann Wilson was voluntary, and that he had had voluntary intercourse with her on two previous occasions in May and June. In May, Mrs. Wilson had also given him some money. Moore testified that he did not take the Kennedy half dollars from Mrs. Wilson; rather, she had given them to him. Moore denied any knowledge of the stabbing.

Moore was found guilty of first degree murder. At the sentencing phase both sides reintroduced all of the evidence that had been submitted at the guilt phase. The jury found three aggravating circumstances: (1) That Moore was engaged in the commission or attempted commission of aggravated rape, aggravated burglary and armed robbery; (2) that Moore knowingly created a risk of death or great bodily harm to more than one person; and (3) that the offense was committed in an especially heinous, atrocious or cruel manner. ² The jury recommended the death penalty.

On appeal, the Louisiana Supreme Court upheld Moore's conviction and sentence. State v. Moore, 414 So.2d 340 (La.1982). The court found, however, that there was insufficient evidence to support the jury's finding that Moore had created a risk of death or great bodily harm to baby Regina. ³

Moore petitioned for a writ of certiorari to the United States Supreme Court, and the Court stayed Moore's execution pending disposition of his petition. Moore v. Louisiana, --- U.S. ----, 104 S.Ct. 38, 77 L.Ed.2d 1456 (1983). On June 27, 1983, the Supreme Court denied Moore's petition for a writ of certiorari, and Moore was scheduled to be executed on August 11, 1983. Moore petitioned for habeas relief in state district court, which was denied. Moore then sought habeas relief in the Louisiana Supreme Court, which was also denied. Moore v. Maggio, 435 So.2d 997 (La.1983).

Having exhausted his state remedies, Moore then filed a petition for federal habeas relief and a motion for a stay of execution in the court below on August 9, 1983. The district court issued an order staying Moore's execution until the court could pass on Moore's habeas petition.

In his habeas petition, Moore contended that he was entitled to relief because:

(1) He received ineffective assistance of counsel at the guilt phase of the trial;

(2) He received ineffective assistance of counsel at the penalty phase of the trial;

(3) The Louisiana Supreme Court failed to engage in a meaningful appellate review designed to ensure that death was the appropriate sentence; (4) One of the three aggravating circumstances found by the jury was unsupported by the evidence;

(5) The trial court's exclusion of jurors who were unambiguously opposed to imposing the death penalty resulted in a biased and unfair jury;

(6) The trial court gave the jury inadequate instructions concerning imposition of the death penalty; and

(7) The death penalty in Louisiana, as well as in the United States, is applied in a racially discriminatory and arbitrary manner.

On October 17-18, 1983, the district court held an evidentiary hearing concerning Moore's claim of ineffective assistance of counsel at the penalty phase of his trial. Following the hearing, the court concluded that Moore had been denied effective assistance of counsel during that part of the trial. The court vacated Moore's death sentence and ordered a new sentencing trial. The district court found that Moore received effective assistance of counsel at the guilt phase of the trial, a determination that Moore does not appeal. The court found it unnecessary to address Moore's remaining contentions because they related to Moore's sentence, which was vacated by the court.

The State of Louisiana now appeals the district court's order granting Moore a new sentencing trial. In the event that we reverse the district court's grant of partial habeas relief, Moore contends that the case should be remanded so that the district court can consider issues (3) through (7), which the court declined to address in the prior proceeding. ⁴

II. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY HEARING.

In the court below, Moore challenged counsel's assistance during the penalty phase in four respects. He asserted that counsel was ineffective because (1) he failed to present evidence of mitigating circumstances to persuade the jury not to recommend the death penalty; (2) he failed to argue or plead for Moore's life; (3) he did not during the...