Moore v. State

• Decision Date: 17 January 1990
• Docket Number: No. F-85-668,F-85-668
• Citation: 788 P.2d 387,1990 OK CR 5
• Parties: Dewey George MOORE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 387

788 P.2d 387

Dewey George MOORE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-85-668.

Court of Criminal Appeals of Oklahoma.

Jan. 17, 1990.

Rehearing Denied April 6, 1990.

An Appeal from the District Court of Oklahoma County; James L. Gullett, District Judge.

Dewey George Moore, appellant, was convicted of First Degree Malice Aforethought Murder and Kidnapping, After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CRF-84-4759, sentenced respectively to death and nine-hundred ninety-nine (999) years imprisonment, and appeals. AFFIRMED.

Pete Gelvin, Asst. Appellate Public Defender, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

Dewey George Moore, the appellant, was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S.1981, § 701.7) (Count I), and Kidnapping (21 O.S.1981, § 741) (Count II), After Former Conviction of Two or More Felonies (21 O.S.1981, § 51) in Oklahoma County District Court, Case No. CRF-84-4758, before the Honorable James L. Gullett, District Judge. The jury found three aggravating circumstances, and sentenced appellant respectively to death and nine-hundred ninety-nine (999) years imprisonment. We affirm.

Twelve-year-old J.G. was abducted from the Carl Albert Junior High School parking lot in Midwest City after a football game, between 9:00 and 9:30 p.m., on September 27, 1984. She wore a pep club uniform, consisting of a red sweater and a gray skirt, red pony earrings, and was on her period that day. Mrs. Debbie Scarberry, J.G.'s mother, identified State Exhibit 148, which was found in a brown sack on top of Breeden's Grocery Store less than one block from appellant's trailer, as one of the red pony earrings J.G. wore the day she disappeared. Midwest City Detective Bill Howard testified that around 11:00 a.m. on September 28, 1984, J.G.'s body was found lying facedown in a ditch at Tenth and Peebly Road in Harrah, Oklahoma, some ten (10) miles from Midwest City. The victim was clad in a bra, pulled up off her breasts, and panties rolled down below her buttocks. Her body had adhesive and binding marks on her ankles, wrists, thighs and throat. A piece of duct tape was wadded in her hair, and there were abrasions on her neck and face. Detective Howard observed a pattern of dots on J.G.'s upper arm, which matched the pattern on a belt found in a paper sack on the roof of Breeden's Grocery Store, located less than one block from appellant's trailer in Oklahoma City.

Nicky Graham, an investigator for the medical examiner, collected hairs and fibers which appeared to be held to the body by adhesive. He placed the evidence in envelopes, which he turned over to Deputy David Williams, of the Oklahoma County Sheriff's Office. Dr. Chaik Choi, medical examiner, conducted an autopsy on the victim and determined the cause of death to be asphyxia by strangulation and possibly smothering. Dr. Choi took head and pubic hair samples, did a pubic hair combing, removed duct tape matted in the scalp hair, and fibers and hairs, which were turned over to Deputy Williams.

Grace Comes, a spotter at the football game, testified that about 9:30 p.m. on September 27, 1984, after the game in Midwest City, while parked outside the locker room, she heard a car horn blowing, saw five cars backed up in traffic, and said the yellow car looked like the pictures of appellant's car depicted in State Exhibits 66 and 67. Paulo Gomes, a football player, was running by the parking lot after the game when he saw a man with a mustache, cap and vest, grab hold of a girl, who was wearing a pep club uniform and yelling for help, and push her in a yellow car. Gomes first identified appellant as the man he saw that night, but then stated "....it was kind of dark. I couldn't really tell, but what I've seen looked like him." He later saw appellant ten or twelve times on television. On cross-examination, Gomes denied identifying a different man in a photographic lineup. He responded affirmatively when asked if he was positive appellant was the man he saw that night. When he was recalled for further cross-examination, Gomes admitted he may have picked out appellant in the photo lineup for what he was wearing, and a different person for the build. On redirect, Gomes testified he identified appellant based on what he saw the night the incident took place, and did not rely on what he saw on television.

Mrs. Billy Turner saw a tall heavy set man wearing a blue checked flannel shirt and blue jeans put his arm around a short girl, with short brown hair, wearing a cheerleader costume. She saw the man walk the girl to a yellow car, open the door, put his hand over her mouth, hit her in the face, and push her into the car. Mr. Turner saw a white man put his arm around a girl in a cheerleader uniform, and put her in a yellow car. He thought the man had a mustache and was wearing a cap. The Turners both indicated the yellow car looked like the one depicted in State Exhibits 66 and 67.

Eddie Moore testified his brother, appellant, came to his Midwest City home, located less than one mile from Carl Albert Junior High, around 8:45 p.m. on September 27, 1984. Appellant expressed concern about an outstanding warrant for drunk driving and a new car tag, and left between 9:15 and 9:30 p.m. wearing blue jeans and a light colored long sleeve western shirt. He said State Exhibits 66 and 67 looked like appellant's car. He had given appellant several rolls of duct tape.

Richard Owens testified his 1977 maroon Delta 88 oldsmobile, which had no hub caps, was stolen between 8:00 and 9:00 a.m. on September 28, 1984, while it was parked next door to Breeden's Grocery Store in Oklahoma City. He denied having a pair of gloves in his car. He stated Breeden's Grocery Store was about one-eighth of a mile from Hillcrest Mobile Home Park. Margaret Swanson, Assistant Manager of Hillcrest Mobile Home Park, rented the trailer at 3209 Cragg Drive to appellant on September 5, 1984. At 10:44 a.m. on September 28, 1984, Midwest City Police Officer Joe Tuberville spotted the car reported stolen by Mr. Owens and stopped it. Officer Tuberville identified appellant as the driver of the car. Appellant was read his rights and arrested for larceny of an automobile. State Exhibit 8 showed appellant had a mustache when he was booked on September 28, 1984. Detective Silas Ingle processed the vehicle and found a black pair of men's gloves on the front seat. After determining the gloves did not belong to Mr. Owens, and examining them closer finding part of a hair, Detective Ingle delivered the gloves and hair to Janice Davis with the Oklahoma City Police Department forensic chemist lab. A green cap was taken from appellant at the Midwest City Jail.

Richard Dean testified appellant worked for him from September 5, until September 28, 1984, when appellant arrived at the Midwest City job site between 9:45 and 10:00 a.m. and said he had to quit, because he "had a mild coronary during the night." When Mr. Dean gave appellant his check, appellant appeared "very nervous," "wide eyed," and was driving an older dark colored car that was missing hubcaps, instead of the yellow car he usually drove, which Dean identified as depicted by State Exhibits 66 and 67.

Detective Bill Howard went to the Hillcrest Mobile Home Park in Oklahoma City on September 29, 1984, and, pursuant to a search warrant, led a search of appellant's trailer and his 1976 yellow Buick. Detective Howard observed maroon floor mats in appellant's car, found wadded up duct tape outside the trailer, a partially packed suitcase including folded clothes and toilet articles, and a used kotex under the bed in the master bedroom. Another search of the trailer was conducted pursuant to search warrant on October 4, 1984, when officers seized various fiber samples and earring backings in a crack of the couch under the cushions.

James Macon resided at the Hillcrest Mobile Home Park in October of 1984. On Friday, October 5, he walked to Breeden's Grocery Store and saw a brown paper sack on the roof. He first noticed the sack on September 30, 1984. Macon and Tim Baker climbed on the roof and opened the brown sack, which contained several items including used wadded up duct tape, a knife, a belt, a feminine napkin, and cigarette butts. The men called the police who picked up the sack and its contents.

Janice Davis, a forensic chemist with the Oklahoma City Police Department, testified in detail concerning her findings upon analyzing numerous items and concluded in relevant part that: (1) J.G. was blood type O, secretor status unknown; (2) appellant was blood type O and a secretor; (3) the vaginal, anal, oral, and right thigh swabs, as well as the panties and bra, taken from J.G. did not contain any semen; (4) the used sanitary napkin taken from the brown sack on top of Breeden's Grocery contained blood type O, as well as five pubic hairs consistent with J.G.; (5) eight of the eleven cigarette butts taken from the brown sack at Breeden's Grocery were smoked by a secretor with blood type O; (6) a red pony earring front and backing like the one worn by J.G. was found in the brown sack at Breeden's Grocery; (7) two earring backings were found under the cushions on appellant's couch; (8) a hair found on J.G.'s wrist was microscopically consistent with appellant's leg hair; (9) scalp hairs found in the front floorboard and driver's seat of appellant's car were consistent with JG.'s hair; (10) a scalp hair on a used sanitary napkin found under appellant's bed was consistent with J.G.; (11) four scalp hairs found on appellant's bedspread, six scalp hairs found on his bottom sheet, and two scalp hairs found on his topsheet, were consistent with J.G.; (12) several scalp hairs found on an afghan on appellant's couch, on cushion covers, and...