Bad Rap

Is Joshua Moore serving a 12-year sentence because of his taste in music?

At that point, King asked Moore if he had recently visited any video stores in Fullerton. "Moore told me that he has never been in any video stores in Fullerton," her report says. But King didn't believe him. "I explained the case I had, including the description of the suspects and the car. How it matched him perfectly. Then [how] the victim identified him out of a series of photographs. Moore could not explain why he was identified. He just kept saying that he [sic] wasn't him, that he had never been in a video store in Fullerton."

In fact, Moore had every reason to think his name would be cleared in the video-store robbery. On the day of the crime, Moore told police, he was working as a cashier at the Las Vegas Golf & Tennis shop in Huntington Beach, a good 30 to 45 minutes from Fullerton. Cash-register printouts from the store suggest Moore was the cashier for two critical sales that day, at 11:30 a.m. and 12:05 p.m. Those transactions would have made it impossible for Moore to drive to and from Fullerton, where the robbery took place at about 11:50 a.m.

Moore had something else: two fellow employees who could tell police he was working at the store from 10 a.m. to 6 p.m. on Aug. 29.

Two years after the crime, one of those employees no longer has a clear recollection of that day. "I do remember, however, that Mr. Moore never missed a day of work, was always on time, and never left early," Mark Peterson said. "He was always a conscientious and diligent worker."

The other employee, Sean Barbosa, is now a manager in the retailer's Torrance store. He has a much clearer memory. "I remember working with Joshua Moore in the Huntington Beach store that day—Mr. Moore, Mark Peterson and myself," Barbosa asserted in a June 8, 2000, declaration.

"We only had three people in the store that day," he recently told the Weekly. It was a Saturday, he recalls, the day of a special promotional sale, and business was brisk. Employees were allowed only 30 minutes for lunch, Barbosa explained, and usually one worker would go grab fast food for everyone and rush back to the store.

"For Josh to have been out of the store for an hour and a half would have been too obvious not to notice," Barbosa said.

Barbosa added that he allowed Moore to work at the store even after he had been arrested and charged in both crimes. "I never had a problem with him," Barbosa said. "He was very polite, very professional. He worked with money day in and day out."

Barbosa said Moore admitted he had been driving the car when his passengers robbed Nakamura at the ATM machine. "He never denied that, but he denied the video-store robbery," Barbosa said. "I believed him. I had no reason not to. I was there [at the store]."

But Barbosa and Peterson never got a chance to tell their stories because nobody ever called them to find out whether Moore's alibi was solid. "No police officer, lawyer or investigator ever contacted or spoke to me about this. And I wondered about it at the time," Peterson declared in a June 14, 2000, affidavit.

Indeed, the only store employee called to testify at Moore's pretrial hearing was manager Brian Wiltjer. But Wiltjer had been called by the defense primarily as something of an expert on the company's cash-register receipts. During Pham's cross-examination, however, Wiltjer walked into a minefield. In response to her questions, Wiltjer acknowledged that he didn't work on the day of the crime and, therefore, could not say with certainty that other employees had not used Moore's code number to log on to the cash register.

With THE HELP OF DAVID L. TUCKER JR., an Albuquerque, New Mexico-based attorney with Appellate Defenders in San Diego, Moore is appealing his case. The appeal includes affidavits by Barbosa and Peterson and claims that Moore's defense attorney, Daryl Dworakowski, failed "to contact two persons who could have given eyewitness corroboration of petitioner's alibi defense."

Dworakowski doesn't deny the error. In a July 19, 2000, declaration attached to Moore's recent appeal, Dworakowski complained that he was blind-sided by Pham's use of Moore's rap lyrics.

"I received discovery from the prosecution prior to trial that included a list of evidence seized by police at the time of Joshua Moore's arrest at home, in the course of a search of his room," Dworakowski stated. "One of the items was a notebook with 'gang writing.' The notebook was not made available to me for inspection before the trial, nor was there any indication anywhere in the discovery provided that the notebook contained pictures of guns. Further," he complained, "the District Attorney did not alert me of this fact at any time prior to trial."

Dworakowski also stated under oath that he knew Moore's fellow store employees could corroborate his client's alibi but failed to contact them. "It was my intention to rely on the alibi evidence already developed and possessed. . . . I never did attempt to telephone, write to or interview either Sean Barbosa or Mike Peterson."

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