State v. Moore
| Decision Date | 23 July 2009 |
| Docket Number | No. CR-07-0164-AP.,CR-07-0164-AP. |
| Citation | 222 Ariz. 1,213 P.3d 150 |
| Parties | STATE of Arizona, Appellee, v. Julius Jarreau MOORE, Appellant. |
| Court | Arizona Supreme Court |
Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Phoenix, Lacey Stover Gard, Assistant Attorney General, Tucson, Attorneys for State of Arizona.
David Goldberg, Attorney at Law By David Goldberg, Fort Collins, CO, Attorney for Julius Jarreau Moore.
¶ 1 This mandatory appeal is from a jury's determination that Julius Jarreau Moore should be sentenced to death for two of the three murders for which he was convicted. We have jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001).
¶ 2 In November 1999, Delia Ramos and Sergio Mata were selling crack cocaine from a small rental house in which they lived on East Yale Street in Phoenix.1 Delia's brother Guadalupe Ramos lived with the couple.
¶ 3 On November 15, Debra Ford came to the house around 5:30 p.m., bought $30 to $40 of crack cocaine, and began smoking it. After Ford ran out of money and drugs, she remained at the house hoping Delia would give her more crack. Later that evening, Ford sat outside the house smoking crack with Moore and Sarry Ortiz. At some point, Moore left and Ford went with Ortiz to drive around and smoke more crack. Ford again smoked crack when she later returned to the Yale Street house.
¶ 4 While Ford was away with Ortiz, Moore went to his mother's house, where he lived with his girlfriend, Jessica Borghetti. Moore told Borghetti that he had seen a person who had tried to run him over and he was not going to stand for it. He took a 9 mm pistol and drew a map for Borghetti of where he was going in case something happened to him. The map showed a destination other than the Yale Street house.
¶ 5 Tony Brown, an acquaintance of Ford, stopped by the Yale Street house at about 4:00 a.m. on November 16, looking for his girlfriend. Brown saw Mata outside and offered him cash if he would tell Brown's girlfriend to come out. When Mata tried to take the cash, Brown hit Mata and threatened him. Mata ran inside and Brown decided to leave.
¶ 6 As he was leaving, Brown saw a man, whom he later identified as Moore, hiding in oleander bushes near the house. Brown had seen Moore earlier that evening at a different crack house. Brown testified that Moore called him over to the bushes, flashed a gun, and asked if Brown wanted to help Moore "get" Mata. Brown declined and left on his bicycle.
¶ 7 After Brown left, Moore sat outside the Yale Street house smoking cigarettes with Ford and Guadalupe. Moore went inside, obtained a small amount of crack, and then came back outside to smoke it. Guadalupe and Ford went back inside the house. While inside, Ford could hear Moore repeatedly knocking on the door and calling for her. Delia gave Ford some crack and asked her to leave.
¶ 8 When Ford went outside, Moore asked if she got more crack and offered to let her use his pipe. Mata then came outside. Moore asked whether Mata had a problem with him. Ford heard no response; instead, she saw Moore shoot Mata and then turn and shoot her. Ford fell to the ground and heard several more gunshots in quick succession.
¶ 9 Shortly afterward, Ortiz picked up Moore near the Yale Street house and drove him to his mother's house. When he went inside, his mother began yelling at him. Moore told Borghetti he did not "need that right now" because he had just shot four people. Upon learning that Moore had been out all night, his mother kicked him and Borghetti out of the house. Moore and Borghetti left with Ortiz. Moore gave Ortiz some crack while they drove around.
¶ 10 While driving, Ortiz saw Ford lying in the front yard of the Yale Street house. Ortiz got out of her car and flagged down a taxi driver who called 911. Ortiz noticed Moore trying to "take off in [her] car." She got back in her car and they drove around the neighborhood, picked up Ortiz's friend, stopped at another crack house to smoke crack, and then drove past the crime scene again. After seeing the police had arrived, Ortiz took Moore and Borghetti back to his mother's house. As he got out of the car, Moore gave Ortiz and her friend some crack.
¶ 11 Moore and Borghetti packed some belongings, including Moore's gun and the clothes he had worn the previous night, and went to some friends' apartment. After his photo appeared in the newspaper, Moore cut off his braids in an effort to alter his appearance. On November 23, 1999, Phoenix police officers arrested Moore and Borghetti at the apartment. A firearms examiner later concluded that bullets found at the crime scene had been fired from Moore's gun.
¶ 12 Moore was indicted for and convicted of two counts of premeditated and felony murder for the murders of Delia and Guadalupe, one count of premeditated murder for the murder of Mata, one count of attempted first-degree murder for the injuries to Ford, and one count of first-degree burglary. The trial court was to sentence Moore in August 2002, but the hearing was vacated after the Supreme Court held that Arizona's capital sentencing scheme was unconstitutional. See Arizona v. Ring (Ring II), 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
¶ 13 In November 2004, the trial court empanelled a jury to determine Moore's sentence. The State alleged two aggravators: that Moore murdered Delia in an especially cruel manner, see A.R.S. § 13-703(F)(6) (Supp.1999), and that Moore murdered multiple persons on the same occasion, see id. § 13-703(F)(8). The jury did not reach a verdict on the (F)(6) aggravator, but did find the (F)(8) aggravator. Before the penalty phase concluded, the court declared a mistrial because Moore's medical expert suffered a heart attack.
¶ 14 In May 2007, the trial court empanelled a second jury to determine Moore's sentence. The court allowed the State to retry the (F)(6) aggravator, and the second jury also failed to reach a verdict on this aggravator. The court instructed the jury that the (F)(8) aggravator had been established. The jury determined that Moore should be sentenced to death for the murders of Delia and Guadalupe, but should serve life imprisonment for the murder of Mata.
¶ 15 Moore challenges the trial court's denial of his motions to suppress Ford's pretrial and in-court identifications. He argues that the court correctly concluded that the pretrial identification procedures were unduly suggestive, but erroneously found that Ford's identification of Moore was nonetheless reliable and therefore admissible under Neil v. Biggers, 409 U.S. 188, 199-201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
¶ 16 Even if a pretrial identification procedure was impermissibly suggestive, a subsequent identification is admissible if it is nonetheless reliable. See State v. Lehr, 201 Ariz. 509, 520 ¶ 46, 38 P.3d 1172, 1183 (2002). To determine reliability, Arizona courts consider the Biggers factors. Id. at 521 ¶ 48, 38 P.3d at 1184.
[T]he factors to be considered [in evaluating the likelihood of misidentification] include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.
Id. (alterations in original) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).
¶ 17 This Court reviews trial court rulings on pretrial identifications for abuse of discretion. Id. at 520 ¶ 46, 38 P.3d at 1183. We defer to a trial court's factual findings that are supported by the record and are not clearly erroneous. See State v. Grell, 212 Ariz. 516, 528 ¶ 58, 135 P.3d 696, 708 (2006). The ultimate question of the constitutionality of a pretrial identification is, however, a mixed question of law and fact. Sumner v. Mata, 455 U.S. 591, 597 & n. 10, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (). This Court reviews de novo such mixed questions of law and fact. See State v. Altieri, 191 Ariz. 1, 2 ¶ 7, 951 P.2d 866, 867 (1997) (). A trial court ruling on a motion to suppress is reviewed based solely on the evidence presented at the suppression hearing. State v. Newell, 212 Ariz. 389, 396 ¶ 22, 132 P.3d 833, 840 (2006); State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) ().
¶ 18 On the morning of the shooting, Detective Tim Cooning questioned Ford at the hospital. Ford described her assailant as "Jay," a "black male, approximately twenty-one years of age." She also said that she had not seen Jay before the shooting. In the days that followed, Cooning showed Ford a photo of another suspect — Tony Brown. Ford indicated that Brown was not the shooter and that the shooter was "smaller in size and thinner than [Brown]."
¶ 19 On November 20, 1999, four days after the shootings, Cooning questioned Ford again at the hospital. Lying in a hospital bed, Ford could not easily speak because she had a tracheotomy and tubes in her nose. Cooning showed Ford a photo lineup of six African-American males that included Moore. Asked if she recognized anyone, Ford shook her head no. Cooning then asked Ford if she had any doubt that it was "Jay" who shot her and she again shook her head no. She nodded in assent when asked to confirm that she had previously said that Jay acted alone, that he was smaller and skinnier than Brown, and that he was a...
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