99 Percent Certain

Evidence uncovered by the Weekly suggests Fullerton police may have prejudiced the testimony of a key prosecution witness in the case of Joshua Moore, a robbery suspect convicted largely on the basis of his affection for gangster rap.

Moore was convicted on Nov. 4, 1999, for his alleged role in the August 1998 robbery of a Fullerton video store. That robbery left police with no physical evidence and contradictory eyewitness accounts. Some of the facts were clear: two men emptied the store's cash drawer of $190 and lifted a copy of the video Caught Up. Witnesses agreed that one of the suspects was black; they described the other suspect as heavy-set and either white with brown hair, white with red hair or a light-skinned black man or Hispanic. One witness thought the pair escaped in what looked like a blue Geo Prism.

A few months later, with the case heading nowhere, investigators got a break when Orange police arrested one white and two black suspects in an ATM robbery. The white suspect, Moore, was driving his blue Geo Prism away from the crime. Moore admitted being the getaway driver in the holdup; he said he had no idea his passengers had planned to rob anyone. His car became the closest thing to physical evidence Fullerton police ever found in the video-store robbery.

Moore might never have been charged, much less convicted, of the video-store robbery without the testimony of store clerk MikeAnn Kim. Notes from Kim's December 1998 interview with Ed Solis, a detective for Moore's defense attorney, suggest that Kim may have been prejudiced by police, who already suspected Moore of the video-store robbery.

Speaking to Solis just days after she identified Moore for police, “Kim said that on a percentage scale, she is 99 percent certain she picked the correct subject.” But Kim also told Solis “she was watching a movie when the subjects walked in and was not paying close attention to them.”

If Kim told Solis she was “99 percent certain” about who robbed her, her memory had clearly improved with time. 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.

How had she become so certain? Kim's interview with Solis shows that before she identified Moore, police told her that “they had caught two guys—a white guy and a black guy—in an ATM robbery. Kim said the detective told [her] because of the similarities—a white guy and a black guy—[the detective] wanted to show her some photos of the subjects.”

Immediately after she identified Moore, Kim told Solis, the police gave her more information about Moore—information that would clearly lead her to believe she had picked the right suspect. “The detective told her that the white subject she had picked out was the subject that was involved in the ATM robbery,” Solis wrote. “Kim said the detective further told her that when the subject was arrested, he had BB guns and not real guns.”

Kim was the only witness who ever identified Moore before his trial. After testifying against Moore in court, Kim disappeared, foiling both the Orange County probation department and the DA's office's efforts to locate her. The Weekly also has been unable to locate Kim, who was the only witness who ever told police the suspects were armed.

The other two witnesses, Sonja McCarty and Glenn Cannon, never reported seeing guns. They agreed that one of the robbers was black, but they differed significantly in their descriptions of the second suspect. In her interview with Solis, McCarty said the second robber was a “big, redheaded guy”; Moore's hair is dark brown. Cannon told Solis he was entering the video store just as the two suspects were leaving, but he believed “the second subject was lighter and appeared to be either a light-skinned black male or a Hispanic subject. Cannon said he only saw the subject briefly through his peripheral vision but does not believe he is a Caucasian.”

If there's confusion about the second suspect, there's also uncertainty about Moore's Geo Prism. Notes from Solis' interview show that McCarty was less than positive the car was actually a Geo Prism. “McCarty did not see any emblems on the car and is not positive, [but] the body style of the car appeared to be a Geo Prism,” Solis wrote. “McCarty said a receptionist at her work used to have a Geo Prism that looked exactly like the car she had seen.”

But in court, appearing as a witness against Moore, McCarty testified that a photograph of Moore's car presented by the prosecution didn't match the vehicle she saw at the Fullerton store. “It was not this blue,” she testified. “It looks—it did not have these same rims, but it looks as though it was the same car, but it was not the same color. It looks as though it's been painted since I've seen it.” Prosecutors have never established that Moore repainted his car.

On Nov. 4, 1999, largely on the basis of shaky eyewitness testimony and his love of gangster rap, Moore was convicted of two counts of armed robbery. He is serving 12 years at Wasco State Prison near Bakersfield. In June, Moore will appeal his conviction. Attorney David L. Tucker will argue that Moore was inadequately represented and that overzealous police and prosecutors ignored compelling evidence of his innocence. As the Weekly has already reported, neither police, the DA, nor even Moore's original defense attorney ever contacted two eyewitnesses who could have testified that Moore was at work at the Las Vegas Golf & Tennis Shop in Huntington Beach when the video store was robbed (“Bad Rap,” March 2). Although cash-register receipts from the time of the robbery back Moore's claim, Moore's defense lawyer didn't contact them, much less call either witness to testify in Moore's defense.

“What condemned my kid to prison was the fact that the defense attorney didn't do his job and the DA used nothing but innuendo and character assassination—and got away with it,” remarked Cynthia Moore, Joshua's mother. “This whole ordeal has been a real learning experience for our family.”

Jim Dinwiddie, Moore's uncle, served on the Orange County grand jury three years ago. He said he understands why police suspected his nephew but believes that both police and prosecutors should have investigated his alibi.

“They are more interested in the count of arrests and prosecutions than the rights of the defendants,” Dinwiddie complained. “The first question the DA should ask is whether there is exculpatory evidence. Apparently, this isn't on their checklist. To me, that's a big problem.”