Call it prosecutorial performance art. In late 1999, deputy district attorney Cheri Pham was prosecuting Joshua Adam Moore for two armed robberies. The 19-year-old Moore had no criminal record and received an outpouring of support from family members, friends and even his employer—all of whom described Moore, the blue-collar son of a dockwor-ker, as a hard-working, well-adjusted kid. By all accounts, including his own, Moore was the getaway driver for the second robbery, but he claims he didn't know a crime had been committed until after the fact. And other than a somewhat questionable eyewitness identification, Pham had only the slimmest of evidence against Moore in the first robbery.
What she did have were a few grainy photographs seized by police from Moore's bedroom. One showed Moore, a suburban white kid from Torrance, adopting gangster-style poses with high school friend and fellow rap-music aficionado Gary Johnson. Another showed Moore pointing a fake gun at Johnson. Pham also had a few selections of rap lyrics Moore had penned in a high school notebook—lyrics she used to convince a jury that he was guilty of armed robbery.
Late in the trial, Pham put Johnson, who had been called as a character witness for the defense, on the stand. He took his place next to Orange County Superior Court Judge Daniel J. Didier.
"Rap groups," Pham said. "Okay. Are you into rap music?"
A: Yes I am.
Q: And do you know if the defendant is into rap music?
A: Yes, he is.
Q: Has the defendant ever written any lyrics to rap music?
A: Yes, he has.
Q: Do those lyrics include using guns, robbing people, etc.?
A: Uh-huh, yes.
Q: I have nothing further.
Shortly after, during closing arguments, Pham brought up Moore's in-terest in rap music once again. "Mr. Moore admitted he knew 187 meant murder and 211 meant robbery and used those two code numbers in his rap lyrics," Pham told the jury. "Mr. Moore is a man who likes to make his life reflect reality. He likes rap music because it reflects real life because real life is full of crimes. Well, on Aug. 29, 1998, and Nov. 24, 1998, that's exactly what he did. He wanted to make his life real, and he committed those two robberies."
The jury agreed. On Nov. 4, Moore was convicted on two counts of armed robbery and sentenced to 12 years in state prison. Now 21, Moore is an inmate at Wasco State Prison near Bakersfield. His parole date is Jan. 13, 2010.
While Moore's connection to the crime remains a matter of dispute—Moore is challenging his conviction in an upcoming appeal—the only thing clear about the Aug. 29 robbery of the Video Stage store in Fullerton is that two men did the crime: a white guy and a black guy who walked into the store together. Witnesses told police the white man appeared to be in his 20s, weighed at least 250 pounds, and was wearing a blue polo T-shirt and Levi's denim shorts. Both men were wearing black baseball caps and carrying .45 automatic handguns. They pointed their weapons at the store clerk and demanded money. They got $190 in cash and a purloined copy of the gangster/hip-hop movie Caught Up—a VHS video valued at $10—ran outside, and jumped into what witnesses described as a blue Geo Prism.
Evidence for the prosecution: Moore's gun fetish
Moore showed up on police radar three months later. On Nov. 24, the Orange Police Department arrested Moore while he was driving his blue Geo Prism from a holdup outside a local bank. According to the police report, Moore never denied that he was the getaway driver. He expressed what appeared to be genuine concern that he had unknowingly taken part in a crime and wanted to know if the holdup victim was okay. Moore told officers his involvement had stemmed from an honest mistake.
Moore said he agreed to drive from Torrance to pick up his friend Charles Gilbert in Bellflower. Gilbert told Moore he and another friend, Dron Botts, needed a lift to his aunt's house in Orange. Gilbert and Moore shared a love of rap music; Moore had never met Botts. About halfway to the aunt's house, Gilbert suddenly asked Moore to pull into a parking lot next to a Washington Mutual Bank. Police say Botts and Gilbert robbed Brandon Nakamura at gunpoint while he was using the bank's ATM machine.
Moore says he stayed in the car. A minute later, Gilbert returned. That's when Moore says he realized something was wrong: Botts was running and carrying a handgun. Botts jumped into the car and told Moore to hit the gas. But Moore did not speed away. He later told police he was terrified when he saw Botts' handgun; he drove so slowly that Nakamura was able to follow Moore's car for several blocks while he dialed 911 on his cell phone. When a police car took up the chase, an Orange police report says, Moore yielded almost immediately. He pulled over to the side of the road before suddenly speeding away again. Moore later claimed he tried to pull over but Botts—still armed and sitting next to Moore—had ordered him to drive on. As the Prism raced off, police saw a handgun fly out the front passenger window. Moore drove straight into a dead end. The chase was over almost as soon as it began.
Under the driver's seat, police found a plastic replica of a .45 automatic handgun belonging to Moore's friend Gary Johnson.
That discovery would come back to haunt Moore, who knew he faced an uphill battle in convincing police that he had no idea his two passengers intended to rob anyone when he gave them a ride. But he had no way of knowing what would happen just two months later, when Fullerton police arrested him again—this time in connection with the Aug. 29 armed robbery of the Fullerton video store.
Although Moore drove a Geo Prism—a fairly common vehicle—police never found any direct physical evidence linking him to the video-store rip-off. Only one witness saw the vehicle. Sonja McCarty told police the car had four doors; Moore's only had two. Furthermore, she told police, the white suspect was a "big, redheaded guy," according to her interview with a private investigator working on Moore's case. While he seemed to partially fit the victim's description—a heavyset, white male in his 20s—a Fullerton police report shows that the victim, a Korean-American clerk named MikeAnn Kim, also described the handgun-carrying, white suspect as having "light brown" or "blond" hair. Moore's Fullerton-police booking photo shows he had dark brown hair.
That report also shows that the investigating officer wrote "none seen" in the space provided for a suspect's facial characteristics. Yet Kim somehow later managed to identify Moore in a photo lineup of six individuals. It wasn't as hard as it sounds: Kim had every reason to believe that one of the six faces belonged to the suspect, and a copy of the lineup shows that only one of those faces—that of Moore himself—appears to remotely match the victim's description of a young, heavyset Caucasian male; the other photographs were of darker-skinned Latino males, or men who were thinner and older Caucasians. In contrast, Kim was unable to identify Charles Gilbert, whom police suspected was Moore's accomplice, out of a photo lineup of 12 men—all of them black males of roughly the same age and physical build.
Based on Kim's photo identification of Moore, police searched his parents' Torrance home. Inside Moore's bedroom, Detective Linda King found several blue polo T-shirts and black wool baseball caps—common articles of clothing that matched the clerk's description of the white suspect's clothing. But police never found any Levi's shorts in the house, and Moore claims he has never owned a pair. Neither did police locate any weapons or stolen property.
But King found something else: evidence that Moore listened to gangster rap. "In searching Joshua's desk, I found several pieces of paper torn out of notebooks," King wrote in her report. "The paper contained rap songs describing drive-by shootings and .45-caliber weapons. The writings related to FCP or Westside First Class Players, with monikers of G-Bone, Manic and Big J-Mo. Some of the notebooks and writings were collected."
The Weekly was able to examine this evidence in greater detail at the exhibit room of the Orange County Superior Courthouse in Santa Ana. Scrawled throughout the paperwork is Moore's rap nickname, "Big J-Mo," along with "G-Bone," Moore's high school friend and fellow rapper Gary Johnson. One of the papers appears to be a song list for Moore and Johnson's rap duo, FCP, a name that constantly appears in Moore's rap lyrics. The list includes about 29 songs with titles such as "True Playa," "From the Westside (Featuring G-Bone)" and "Treacherous Game."
Apparently because of their violent content, police seized as evidence lyrics to three songs: "FCP," "Come Correct" and "I'm Ready for War." All three describe violent acts with rhymes that seem lifted from gangster rap artists like Ice Cube and Dr. Dre—for example, "I'll blow up yo home to your dome with my chrome." Police and prosecutors would later make much of the fact that "I'm Ready for War" kicks off with a line that involves a .45-caliber handgun, the weapon allegedly used in the Fullerton video-store heist. "None will survive when I got the .45," the song begins. "They wonder why I ride because I'm from the Westside."
Having seized these lyrics as evidence, Fullerton police then searched Moore's 1997 Geo Prism. King and her partner "located the registration and several photographs," her report says. "One of the photographs depicted was [sic] a white arm holding an automatic handgun and pointing it at another male sleeping in a car. Based on my investigation to this point, Joshua Moore was arrested for suspicion of armed robbery. He was transported to the Fullerton Police Department."
Once at the station, police asked Moore if he had ever held a gun. "Moore admitted that he had held a real gun several years ago," King wrote. "I questioned him about more recent times and he admitted that he had held a fake one for some photos in 1997 or 1998." As it turns out, Moore was talking about Gary Johnson's BB gun, the same plastic replica of a .45-caliber pistol found under Moore's driver's seat by Orange police in August.
Moore told King that the sleeping person in the photograph was his friend Gary Johnson, a.k.a. G-Bone. "Moore said he and several of his friends took pictures holding the fake .45 auto-matic," the report states. "Moore kept telling me it was just a joke."
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."
For her part, Cynthia Moore, Joshua's mother, told the Weekly she would like to sue Dworakowski but can't because she was not his client—her son was.
"When we hired him, he told me he knew how to handle the case—that he was an ex-DA and was confident he could get Josh off," Cynthia Moore recalled.
In a two-page letter to the Weekly, Dworakowski defended his handling of the Moore case. "I firmly believe that the convictions were the result of the cumulative effect of the totality of the evidence against Mr. Moore," he said. These included "multiple, unequivocal eyewitness identifications, numerous photographs depicting the defendant posing with various weapons, and circumstantial evidence, including flight after the crime generating police pursuit," Dworakowski asserted.
Cynthia Moore also has harsh words for Deputy DA Pham. "All she used was innuendo and character assassination against my son," Cynthia said. "She had no evidence other than this woman [Kim]. I guess she figured out partway through the trial that my son was into writing music, and that's what she used against him.
"My son is in jail because he had black friends and listened to rap music," Cynthia asserted. "That's what put him in prison for 12 years. Now his major concern every morning when he wakes up in prison is whether he is going to make it through the day without getting his butt kicked."
Six weeks after Moore was convicted, the Orange County Probation Department wrote a separate report dealing with the question of whether he deserved probation instead of a long prison sentence. The agency failed to locate MikeAnn Kim but did manage to leave a message for Brandon Nakamura asking him to comment about Moore. Nakamura never returned the call.
The OC Probation Department interviewed Moore, then being held at the Orange County Jail. He told the agency he had no criminal record and "indicated that he is not a troublemaker and never has been."
As to the pictures found by police, Moore "said he and a friend had just graduated from high school and were playing around with a new camera. . . . The defendant reiterated that he has no prior record and had a 'strong alibi.'"
Moore pleaded with the Probation Department to give him a second chance. "They've made me out to be a gun-wielding maniac," he complained. "This is far from the truth. I've never shot a gun or had one in possession. If given a suspended sentence, I believe I'll be the ideal person who deserves probation. All I'd ask for is a chance to prove myself to the same system that has persecuted me."
The Probation Department's report describes the agency's efforts to reach the police officers involved in the case. "Letters were sent to the arresting and investigating officers requesting comments," the report says.
While they received no written response, probation officials heard by telephone from an "Officer Nash of the Orange Police Department." Nash, they report, "indicated that the defendant should be slammed 'big time.' He believes the defendant has gotten away with numerous robberies."
Nash failed to return the Weekly's calls for comment; through a District Attorney's office spokeswoman, Pham also refused to comment.
But the Probation Department heard back from Pham.
"The Deputy District Attorney acknowledged that the defendant has no prior criminal record and is relatively youthful," the report states. "She believes however that the defendant has 'demonstrated both sophistication and a dangerous propensity for violence in both robberies.'"
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Pham noted "that the defendant's 'use of guns and his association with friends who use guns render him a danger to the community.'"
And then, probation officials noted, there was the matter of Joshua Moore's taste in music—or, as Pham herself reminded them, Moore's "testimony in court about liking guns and writing lyrics about crimes using guns."
The Probation Department agreed with Pham, concluding that Moore should go to prison.
"There further was a significant lapse in time between the first and second robbery," the report concluded. "The defendant had time to reflect on his actions in the first crime and decide to abandon them in pursuit of more positive pursuits. He chose not to. The defendant does not accept responsibility for the crimes."