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The People v. Maury David Moore

May 3, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MAURY DAVID MOORE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F04065)

The opinion of the court was delivered by: Hoch, J.

P. v. Moore

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Maury David Moore of infliction of corporal injury upon his spouse (Pen. Code, § 273.5, subd. (a))*fn1 and found that he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court found that he had suffered a 1987 voluntary manslaughter conviction, alleged as a serious felony (§ 667, subd. (a)) and as a strike (§§ 667, subds. (b)-(i), 1170.12); and he had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for 14 years, consisting of six years for the offense, three years for the infliction of great bodily injury, and five years for the prior serious felony.*fn2

On appeal, defendant contends the prosecutor committed misconduct during his direct examination of the recanting victim when he informed the jury that defendant was in custody. Defendant further claims his trial counsel rendered ineffective assistance when he failed to object to the misconduct and to request a limiting instruction. We affirm the judgment.

FACTS

Prosecution Case

On April 26, 2008, at about 3:00 a.m., Sacramento Police Officer Derick Cannedy and his partner were dispatched to an apartment to investigate a report of "domestic violence in progress." When Officer Cannedy arrived, he met the victim, Giselle Wallace, at the front door of her apartment. He immediately observed that she was crying and had fresh blood on her face. Officer Cannedy saw objects on the ground that looked out of place because such objects would have been on a shelf or table. He saw blood droplets on the kitchen floor and the refrigerator door and observed the remains of an 8-inch-by-10-inch picture frame on the floor with broken glass laying around the frame.

After noting that Wallace had a laceration above her left eye and that the eye was swollen almost completely shut, Officer Cannedy called for medical assistance. Officer Cannedy also took a preliminary statement from Wallace who appeared, in Officer Cannedy's opinion, to be capable of providing a statement even though he had detected a "slight odor of alcohol" on her breath.

Wallace told Officer Cannedy that, during a verbal argument, defendant (her husband) had thrown items all around the house and had broken a mirrored door in the master bedroom. Following the verbal argument, he pushed her down to the floor, hit her two to three times, and threw the picture frame at her, causing the cut to her eye. Wallace told Officer Cannedy that defendant lived with her in the apartment.

Officer Cannedy observed that, in the master bedroom, the mirrored closet door had been knocked off its tracks and the mirror glass had been broken. There were blood droplets all around the bed, on the pillowcase, and in the sink of the adjacent bathroom.

Wallace related that, after defendant assaulted her, he left the apartment and took her car keys and the only apartment key. She expressed concern that, because the only apartment key had been taken, she would be unable to lock or secure the apartment before being taken away for medical aid.

Wallace told Officer Cannedy that she did not know where defendant had gone. However, she added that she did not want to press charges against him. During the interview, Wallace never mentioned the name "Kenneth Jones."

Wallace was in the hospital for a couple of days and required four or five sutures to close the laceration above her eye. She also was treated for a bone fracture above the eye. The eye remained swollen for a week and a half. Medical records showed that Wallace had been treated for a six-centimeter laceration and multiple facial fractures. Those same records contained Wallace's statement that she had been assaulted by defendant, her husband.

Less than two months later, at defendant's preliminary hearing on June 3, 2008, Wallace testified that she had been injured by her ex-boyfriend, Kenneth Jones, and not by defendant. Following her testimony, the prosecution called ...


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