By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
By Charles Lam
Photo by Jack GouldEither Joshua Moore is godlike in his omnipresence or somebody is badly mistaken. At precisely the moment one eyewitness says Moore was robbing her in a Fullerton video store—Saturday, Aug. 29, 1998, 11:50 a.m.—another eyewitness says Moore was working at a golf store in Huntington Beach.
Police and prosecutors refused to contact eyewitness No. 2 and used the video-store clerk's shaky identification—and Moore's love of gangster rap—to persuade an OC jury Moore was guilty of robbery. Now 21, Moore is serving a 12-year sentence in Wasco State Prison.
But no one in law enforcement ever contacted the one witness whose testimony might have kept Moore out of Wasco: the man who supervised his work on the day of the crime, golf-store employee Sean Barbosa.
"I've never been contacted by the Orange County district attorney's office or the Fullerton Police Department about his case," says Sean Barbosa, Moore's boss at Las Vegas Golf & Tennis in Huntington Beach. "That's still beyond me."
Barbosa has signed a sworn affidavit saying Moore worked all day on the date of the Fullerton crime. That document is part of Moore's efforts to win a new trial.
Now managing the company's Torrance golf store, Barbosa says he clearly remembers Aug. 29, the day police say Moore robbed the Fullerton video store. It was a Saturday, a big sale was under way at the Huntington Beach store, and business was brisk. Barbosa was working alongside Moore and a third employee, Mark Peterson. The trio was busy serving customers from 10 a.m to 6 p.m.
Just before noon that day, two robbers—one black, the other Latino or white—entered the video store miles away in Fullerton. Store clerk MikeAnn Kim later told an investigator she was "watching a movie when the subjects walked in and was not paying close attention to them." Indeed, the original police report on the day of the robbery shows that an officer wrote down "none seen" when Kim was asked to describe the white suspect's face.
Kim's memory apparently improved with time. Prompted by investigators months later, she picked Moore's mug shot from a photo lineup. (See "'99 Percent Certain,'" March 16).
Although Moore's arrest report shows he told Fullerton police he was at work that day and had two eyewitnesses who could confirm that statement, neither police, prosecutors nor Moore's original defense attorney ever called Barbosa or Peterson to verify the alibi.
In an affidavit, Peterson admits he can no longer clearly recall Aug. 29, 1998. But, he writes, "I do remember . . . that Mr. Moore never missed a day of work, was always on time, and never left early. He was always a conscientious and diligent worker."
Barbosa is more specific: Moore was at work all day on Aug. 29, 1998, he says, a fact that would have made it impossible for him to commit the crime.
Barbosa's account has become a key part of Moore's appeal for a new trial, filed last year in Santa Ana. In that appeal, Moore's new lawyer says his conviction was the product of "ineffective" legal representation and bad police work.
Why have cops and prosecutors ignored Barbosa? California law requires prosecutors to investigate all exculpatory evidence, but prosecutors told the Weekly they've never heard of Barbosa. Deputy DA Cheri Pham, who handled Moore's original prosecution, said Fullerton police never told her office about Barbosa.
Fullerton police Sergeant Linda King failed to respond to the Weekly's efforts to hear her side of the story. There was no tape recording of Moore's interrogation and King's cursory notes from the interview make no mention of any alibi, saying only that Moore "kept repeating . . . that he had never been to any video store in Fullerton."
Either way, Pham says she had no knowledge that either Barbosa or Peterson could have verified Moore's alibi. But her conduct in Moore's trial contradicts that claim. During the trial, Moore's attorney introduced cash register receipts that showed Moore was working in the Huntington Beach store at precisely the time of the Fullerton robbery. Pham's courtroom response seems to confirm that she knew Moore had eyewitnesses to support his claim of innocence: she asserted without evidence that the receipts might have been forged by coworkers.
It was Pham who told jurors that Moore's taste in music proved his propensity for violence. He "likes rap music because it reflects real life, [and] real life is full of crimes," she said. As a teen, Moore played in a garage band called the First Class Players under the name Big J-Mo. He says his lyrics about guns and gangs were pure fantasy.
DA spokesperson Tori Richards refused to say whether Barbosa's testimony might exonerate Moore, but she didn't rule out the possibility. "It's the first that we've seen of these claims," she said.
The DA has so far refused the Weekly's offer to drive Barbosa to Santa Ana to meet with prosecutors.